FRANCISCO SALVADOR B. G.R. No.

156643
ACEJAS III, The Case
Petitioner, Present:
Before us are consolidated Petitions for Review[1] assailing the March 8,
Panganiban, CJ, 2002 Decision,[2] and the January 3[3] and 14, 2003[4] Resolutions of the
Chairman, Sandiganbayan in Criminal Case No. 20194. Francisco SB. Acejas III and
- versus - Ynares-Santiago, Vladimir S. Hernandez were found guilty beyond reasonable doubt of direct
Austria-Martinez, bribery penalized under Article 210 of the Revised Penal Code.
Callejo, Sr., and
Chico-Nazario, JJ
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas,
PEOPLE OF THE PHILIPPINES, Francisco SB. Acejas III and Jose P. Victoriano were charged on February 8,
Respondent. 1994, in an Information that reads thus:
That on or about January 12, 1994, or sometime prior thereto in the City of
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused VLADIMIR S. HERNANDEZ and VICTOR CONANAN,
VLADIMIR S. HERNANDEZ, G.R. No. 156891 being then employed both as Immigration officers of the Bureau of Immigration
Petitioner, and Deportation, Intramuros, Manila, hence are public officers, taking
advantage of their official positions and committing the offense in relation to
office, conspiring and confederating with Senior Police Officer 3 EXPEDITO S.
PERLAS of the Western Police District Command, Manila, together with co-
- versus - accused Atty. FRANCISCO SB. ACEJAS III, of the LUCENARIO, MARGATE,
MOGPO, TIONGCO & ACEJAS LAW OFFICES, and co-accused JOSE P.
VICTORIANO, a private individual, did then and there, willfully, unlawfully and
feloniously demand, ask, and/or extort One Million (P1,000,000.00) PESOS
Promulgated: from the spouses BETHEL GRACE PELINGON and Japanese TAKAO
PEOPLE OF THE PHILIPPINES, AOYAGI and FILOMENO PELINGON, JR., in exchange for the return of the
Respondent. June 27, 2006 passport of said Japanese Takao Aoyagi confiscated earlier by co-accused
Vladimir S. Hernandez and out of said demand, the complainants Bethel
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x Grace Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr. produced, gave and
delivered the sum of Twenty Five Thousand (P25,000.00) Pesos in marked
money to the above-named accused at a designated place at the Coffee Shop,
Ground Floor, Diamond Hotel, Ermita, Manila, causing damage to the said
DECISION complainants in the aforesaid amount of P25,000.00, and to the prejudice of
government service.[5]

PANGANIBAN, CJ:
T his Court defers to the Sandiganbayans evaluation of the factual
issues. Not having heard any cogent reasons to justify an exception to this
rule, the Court adopts the anti-graft courts findings. In any event, after
meticulously reviewing the records, we find no ground to reverse
the Sandiganbayan.
After trial, all the accused -- except Victoriano -- were convicted. The
challenged Decision disposed as follows:
WHEREFORE, premises considered, accused Vladimir S. Hernandez, Victor
D. Conanan, Expedito S. Perlas and Francisco SB. Acejas III are hereby found
GUILTY beyond reasonable doubt of the crime of Direct Bribery, and are
sentenced to suffer the indeterminate penalty of four (4) years, nine (9) months
1
and ten (10) days of prision correccional, as minimum, to seven (7) years and
four (4) months of prision mayor, as maximum, and to pay a fine of three million
pesos (P3,000,000.00). Accused Vladimir S. Hernandez and Victor D.
Conanan shall also suffer the penalty of special temporary
disqualification. Costs against the accused.
On ground of reasonable doubt, accused Jose P. Victoriano is hereby
ACQUITTED of the crime charged. The surety bond he posted for his
provisional liberty is cancelled. The Hold Departure Order against him
embodied in this Courts Order dated July 24, 2000 is recalled.[6]
The first Resolution acquitted Conanan and denied reconsideration of the
other accused. The second Resolution denied Petitioner Acejas Motion for
New Trial.
Hence, petitioners now seek recourse in this Court.[7]
The Facts
The facts[8] are narrated by the Sandiganbayan as follows:
At around 4:00 to 5:00 p.m. of December 17, 1993, accused Bureau of
Immigration and Deportation (BID) Intelligence Agent Vladimir Hernandez,
together with a reporter, went to the house of Takao Aoyagi and Bethel Grace
Pelingon-Aoyagi at 27 Pacific Drive, Grand Villa, Sto. Nio, Paraaque,
Metro Manila. His purpose was to serve Mission Order No. 93-04-12 dated
December 13, 1993, issued by BID Commissioner Zafiro Respicio against
Takao Aoyagi, a Japanese national. Hernandez told Takao Aoyagi, through
his wife, Bethel Grace, that there were complaints against him in Japan and
that he was suspected to be a Yakuza big boss, a drug dependent and an
overstaying alien.
To prove that he had done nothing wrong, Takao Aoyagi showed his passport
to Hernandez who issued an undertaking (Exh. B) which Aoyagi signed. The
undertaking stated that Takao Aoyagi promised to appear in an investigation
at the BID on December 20, 1993, and that as a guarantee for his appearance,
he was entrusting his passport to Hernandez. Hernandez acknowledged
receipt of the passport.
On December 18, 1993, Bethel Grace Aoyagi called accused Expedito Dick
Perlas[9] and informed him about the taking of her husbands passport by
Hernandez.Perlas told her he would refer their problem to his brother-in-law,
Atty. Danton Lucenario of the Lucenario, Margate, Mogpo, Tiongco and Acejas
III Law Firm. It was at the Sheraton Hotel that Perlas introduced the Aoyagis
to Atty. Lucenario. They discussed the problem and Atty. Lucenario told the
Aoyagis not to appear before the BID on December 20, 1993.
As advised by Atty. Lucenario, Takao Aoyagi did not appear before the
BID. Instead, Atty. Rufino M. Margate of the Lucenario Law Firm filed with the
BID an Entry of Appearance (Exh. 6 Acejas). Atty. Margate requested for
copies of any complaint-affidavit against Takao Aoyagi and asked what the
ground was for the confiscation of x x x Aoyagis passport.
Hernandez prepared a Progress Report (Exh. 5 Hernandez) which was
submitted to Ponciano M. Ortiz, the Chief of Operations and Intelligence
Division of the BID. Ortiz recommended that Takao Aoyagi, who was
reportedly a Yakuza and a drug dependent, be placed under custodial
investigation.
In the evening of December 22, 1993 at the Diamond Hotel, the Aoyagis met
accused Atty. Francisco Acejas III who was then accompanied by Perlas. Atty.
Acejas informed them that it would be he who would handle their case. A
Contract for Legal Services (Exh. D) dated December 22, 1993 was entered
into by Takao Aoyagi and Atty. Acejas, who represented the Lucenario Law
Firm.
In the morning of December 23, 1993, Perlas and Atty. Acejas accompanied
the Aoyagis to the Domestic Airport as the latter were going to Davao. It was
here that Takao Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is
50% of the acceptance fee, and the P15,000.00 is for filing/docket fee (Exh.
O). The Aoyagis were able to leave only in the afternoon as the morning flight
was postponed.
On December 24, 1993, while attending a family reunion, Bethel Grace
Pelingon-Aoyagi informed her brother, Filomeno Jun Pelingon, Jr., about her
husbands passport.
On January 2, 1994, Jun Pelingon talked to BID Commissioner Zafiro Respicio
in Davao and told the latter of Takao Aoyagis problem with the BID. Respicio
gave Pelingon his calling card and told Pelingon to call him up in his
office. That same day, Jun Pelingon and Mr. and Mrs. Aoyagi flew back
to Manila.
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On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas, Vladimir
Hernandez, Vic Conanan and Akira Nemoto met at the Aristocrat Restaurant
in Roxas Boulevard.
Another meeting was arranged at the Manila Nikko Hotel in Makati on January
8, 1994 with Jun Pelingon, Perlas, Atty. Acejas and Hernandez attending.
On January 11, 1994, on account of the alleged demand of P1 million for the
return of Takao Aoyagis passport, Jun Pelingon called up Commissioner
Respicio. The latter referred him to Atty. Angelica Somera, an NBI Agent
detailed at the BID. It was Atty. Carlos Saunar, also of the NBI, and Atty.
Somera who arranged the entrapment operation.
On January 12, 1994, Vladimir Hernandez returned the passport to Takao
Aoyagi at the Coffee Shop of the Diamond Hotel. The NBI Team headed by
Attorneys Saunar and Somera arrested Dick Perlas, Atty. Acejas and Jose
Victoriano after the latter picked up the brown envelope containing marked
money representing the amount being allegedly demanded. Only Perlas,
Acejas and Victoriano were brought to the NBI Headquarters.[10]
Version of the Prosecution
Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno
Jun Basaca Pelingon, Jr., and Carlos Romero Saunar.[11]
The prosecution evidence showed that it was during a meeting on January 5,
1994, when P1 million as consideration for the passport was
demanded.Conanan averred that Aoyagi was a drug trafficker and Yakuza
member. The money was to be used to settle the alleged problem and to
facilitate the processing of a permanent visa. When Pelingon negotiated to
lower the amount demanded, Conanan stated that there were many of them
in the Bureau of Immigration and Deportation (BID).[12]
During the second meeting held at Hotel Nikko, Pelingon was informed that
the press and government enforcers were after Aoyagi. Hernandez asked for
a partial payment of P300,000, but Pelingon said that the whole amount would
be given at just one time to avoid another meeting.[13]
After talking to Commissioner Respicio on January 11,
1994,[14] Pelingon called up Dick Perlas to schedule the exchange.
Regarding the involvement of Petitioner Acejas, the Office of the Solicitor
General (OSG) adds the following facts:
1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at the Aristocrat
Restaurant. [Acejas] informed Pelingon that he would file a P1 million lawsuit
against the BID agents who confiscated the passport of Takao
Aoyagi. [Acejas] showed Pelingon several papers, which allegedly were in
connection with the intended lawsuit. However, when Hernandez and
Conanan arrived at the Aristocrat Restaurant, [Acejas] never mentioned to the
BID agents the P1 million lawsuit. [Acejas] just hid the papers he earlier
showed to Pelingon inside his [Acejas] bag.
1.3. [Acejas] was present when Hernandez proposed that Takao Aoyagi pay
the amount of P1 million in exchange for the help he would extend to him
(Takao) in securing a permanent visa in the Philippines. [Acejas], who was
Aoyagis lawyer, did nothing.
1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and Hernandez met at
the Hotel Nikko. Thereat, Hernandez informed the group that certain
government officials and even the press were after Takao Aoyagi. Hernandez
said that Takao Aoyagi can make a partial payment of P300,000.00. Pelingon
however, assured the group that Takao Aoyagi would pay in full the amount
of P1 million so as not to set another meeting date. [Acejas] kept quiet
throughout the negotiations.
xxxxxxxxx
1.5.a. [Acejas] was present during the entrapment that took place at the
Diamond Hotel. Hernandez handed the passport to [Acejas], who handed it
then to Perlas and thereafter to Takao Aoyagi. After Takao Aoyagi went over
his confiscated passport, Bethel Grace handed to Hernandez the
envelope[15] containing the supposed P1 million. Hernandez refused and
motioned that [Acejas] be the one to receive it. [Acejas] willingly got the
envelope and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagis pass- port, he reminded the group
of their earlier agreement of kaliwaan, i.e., that after the passport is released,
the Aoyagis should give the P1 million.[16]
Version of the Defense
3
Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D.
Conanan and Ponciano M. Ortiz testified for the defense.[17]
To the Sandiganbayans narration, Hernandez adds:
6. x x x [Hernandez], an intelligence agent of the Bureau of Immigration and
Deportation (BID), went to the house of Private Respondents Takao and
Bethel Grace Aoyagi to enforce and serve a Mission Order issued and
assigned to him by BID Commissioner Zafiro Respicio on December 13, 1993,
for the arrest of Takao Aoyagi.
7. When Bethel Grace showed [Hernandez] her husbands passport,
[Hernandez] found out that the latters [authority] to stay had already been duly
extended. He invited private respondents to go with him to the BID office. They
declined, but made a written undertaking to appear at the BID office for
investigation on December 20, 1993. As security for said undertaking, Bethel
Grace Aoyagi entrusted to [Hernandez] her husbands passport, receipt of
which [Hernandez], in return, acknowledge[d] in the same instrument.
8. On January 19, 1994, [Hernandez] signified that the record of Aoyagi has
been cleared and that he can pick up his passport at the BID office. In
connection therewith, [Hernandez] was invited by Perlas to make the return at
a lunchtime meeting to be held at the Diamond Hotel Coffee Shop. Upon
arrival thereat, [Hernandez] gave the passport to Atty. Acejas, Aoyagis
counsel, and within less than ten minutes, he left the coffee shop.[18]
In his Petition, Acejas narrates some more occurrences as follows:
1. 18th December 1993 The law firm of Lucenario Margate Mogpo Tiongco &
Acejas was engaged by the spouses Takao Aoyagi and Bethel Grace Pelingon
Aoyagi. x x x.
xxxxxxxxx
3. 22nd December 1993
a) The managing partner of the law firm, Atty. Lucenario, briefed [Acejas] about
the facts regarding the confiscation by agents of the BID of the passport
belonging to a Japanese client. x x x.
b) Thereafter, [Acejas] was tasked by Atty. Lucenario to meet his brother-in-
law Mr. Expedito Perlas, who happened to be a policeman and a friend of Mr.
Takao Aoyagi. Thus, [Acejas] met Mr. Perlas for the first time in the
afternoon of this date.
c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at the
Diamond Hotel, where they were staying. x x x [Acejas] advised them that the
law firm decided that the clients can file an action for Replevin plus Damages
for the recovery of the Japanese passport.
d) The CONTRACT FOR LEGAL SERVICES was signed between the client
and the law firm, thru [Acejas] as partner thereof. x x x The amount of Fifty
Thousand Pesos (Php.50,000.00) was agreed to be paid by way of Case
Retainers/Acceptance Fees, which was supposed to be payable upon (the)
signing (t)hereof, and the sum of Php.2,000.00 by way of appearance
fee. However, the client proposed to pay half only of the acceptance fee
(Php.25,000.00), plus the estimated judicial expenses for the filing or docket
fees (Php.15,000.00). x x x It was then further agreed that the balance of
Php.25,000.00 was supposed to be given upon the successful recovery of the
Japanese passport.
e) The clients informed [Acejas] that they are supposed to leave for Davao the
following day on the 23rd because they will spend their Christmas in Davao
City; but they promised that they will be back on the 26 th, which is a Sunday,
so that on the 27th, which is a Monday, the complaint against the BID officers
will have to be filed in Court.
xxxxxxxxx
6. 27th December 1993 (T)he law office received word from Mr. Perlas that the
Japanese did not come back on the 26th (December), x x x so that the case
cannot be filed on the 27th instead (it has) to wait for clients instruction.
7. 4th January 1994 In the late afternoon, the law firm received a telephone call
from Mr. Perlas informing (it) that the Japanese is already in Manila and he
was requesting for an appointment with any of the lawyer of the law firm on
January 5, 1994.
8. 5th January 1994 [Acejas] met for the first time Mr. Filomeno Pelingon
Jr. including a certain Nimoto Akira.
x x x.
b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are ready for filing but,
of course, the Japanese client and the wife should first read the complaint and
sign if they want to pursue the filing of the complaint against the BID agents.
4
c) For the first time, Mr. Pelingon advised against the intended filing of the
case. x x x He instead suggested that he wants to directly negotiate with the
BID agents.
d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to contact the BID agent
who confiscated the Japanese passport. Mr. Perlas and Mr. Pelingon were
able to contact the BID agent.
e) For the first time [Acejas] saw Mr. Hernandez, when the latter arrived and
also accused Victor Conanan. In the course of the meeting, a confrontation
ensued between [Acejas] and [Hernandez] concerning the legal basis for the
confiscation of the passport. [Acejas] demanded for the return of the Japanese
passport x xx. Mr. Hernandez said that if there are no further derogatory report
concerning the Japanese client, then in a matter of week (from January 5 to
12), he will return the passport.
f) [Acejas] gave an ultimatum to Mr. Hernandez that if the Japanese passport
will not be returned in one (1) weeks time, then (the law firm) will pursue the
filing of the replevin case plus the damage suit against him including the other
BID agents.
g) x x x Mr. Pelingon Jr. for the second time advised against the filing thereof
saying that his Japanese brother-in-law would like to negotiate or in his own
words magbibigay naman [i.e. will give money anyway].
9. 8th January 1994
a) Again, Mr. Perlas called the law office and informed x x x that the Japanese
client is now in Manila. Petitioner attended the meeting they arranged
in (Makati) and meet Dick Perlas, Vladimir Hernandez and Pelingon Jr. x x x.
b) x x x according to Pelingon Jr., the Japanese does not want to meet with
anybody because anyway they are willing to pay or negotiate.
c) [Hernandez was also] present at the meeting and [Acejas] met him for
the second time. x x x [Acejas] said that if [Hernandez] will not be able to
return the passport on or before January 12, 1994, then the law firm will have
no choice but to file the case against him x x x. Again, for the third time Mr.
Pelingon warned against the filing of the case because he said that he would
directly negotiate with the BID agents.
d) The Makati meeting ended up with the understanding that Mr. Hernandez
will have to undertake the return [of] the Japanese passport on or
before January 12, 1994.
10. 12th January 1994
a) Mr. Perlas called up the law office informing that the Japanese client was
already in Manila and was requesting for an appointment with the lawyers at
lunchtime of January 12 at the Diamond Hotel where he was billeted.
xxxxxxxxx
c) x x x x x x x x x
At this meeting, the Japanese was inquiring on the status of the case and he
was wondering why the Japanese passport is not yet recovered when
according to him he has already paid for the attorney fees. And so, [Acejas]
explained to him that the case has to be filed and they still have to sign the
complaint, the Special Power of Attorney and the affidavit relative to the filing
of replevin case. But the Japanese would not fully understand. So, Pelingon
Jr. again advised against the filing of the case saying that since there is no
derogatory record of Mr. Aoyagi at the BID office, then the BID agents should
return the Japanese passport.
xxxxxxxxx
e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried to contact Mr.
Hernandez. Since, they were able to contact the latter, we waited until
around 2:00 p.m..When Mr. Hernandez came, he said that the Japanese client
is cleared at the BID office and so, he can return the Japanese passport and
he gave it to [Acejas].x x x When [Acejas] received the Japanese passport,
(he) checked the authenticity of the documents and finding that it was in good
order, (he) attempted to give it to the Japanese client.
Very strangely when [Acejas] tried to hand-over the Japanese passport to the
Japanese across the table, the Japanese was motioning and wanted to get
the passport under the table. x x x [Acejas] found it strange. (He) x x x thought
that it was a Japanese custom to receive things like that under the table. But
nonetheless, [Acejas] did not give it under the table and instead passed it on
to Mr. Dick Perlas who was seated at (his) right. And so, it was Mr. Dick Perlas
who took the passport from [Acejas] and finally handed it over to Mr.
Aoyagi. x x x. After that, there was a little chat between Mr. Hernandez and
the client, and Mr. Hernandez did not stay for so long and left.
Still, thereafter, (w)hen the Japanese passport was received, Bethel Grace
Aoyagi and [Acejas] were talking and she said since the Japanese passport
5
had been recovered, they are now willing to pay the Php.25,000.00 balance of
the acceptance fee.
Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed] Mr.
Hernandez to receive it while Mr. Hernandez was still around standing. But Mr.
Hernandez did not receive it.
Since, the payment is due to the law firm, [Acejas] received the brown
envelope.
xxxxxxxxx
Not long after, [Acejas] saw his companion, accused Mr. Victoriano, who
was signaling something as if there was a sense of urgency. [Acejas]
immediately stood up and left hurriedly. When [Acejas] approached Mr.
Victoriano, he said that the car which [Acejas] parked in front of the Diamond
Hotel gate, somebody took the car. [Acejas] went out and checked and
realized that it was valet parking so it was the parking attendant who took the
car and transferred the car to the parking area. [Acejas] requested Mr.
Victoriano to get (the) envelope and the coat, at the table.
g) When [Acejas] went out, [Acejas] already looked for the parking attendant
to get the car. When the car arrived, [Acejas] just saw from the doors of
the Diamond Hotel Mr. Jose Victoriano and Mr. Dick Perlas coming out
already in handcuffs and collared by the NBI agents. They then were taken to
the NBI, except the accused Vladimir Hernandez.[19]
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct bribery, [20] as well as
conspiracy in the commission of the crime,[21] had been proven. Hernandez
and Conanan demanded money;[22] Perlas negotiated and dealt with the
complainants;[23] and Acejas accepted the payoff and gave it to Perlas.[24]
Victoriano was acquitted on reasonable doubt.[25] Although he had picked up
the envelope containing the payoff, this act did not sufficiently show that he
had conspired with the other accused.[26]
The Sandiganbayan did not give credence to the alleged belief of Acejas that
the money was the balance of the law firms legal fees.[27] If he had indeed
believed that the money was payable to him, he should have kept and retained
it. The court then inferred that he had merely been pretending to protect his
clients rights when he threatened to file a suit against Hernandez. [28]
The January 3, 2003 Resolution acquitted Conanan and denied the Motions
for Reconsideration of Hernandez, Acejas and Perlas. According to the
Sandiganbayan, Conanan was not shown to be present during the meetings
on January 8 and 12, 1994.[29] His presence during one of those meetings,
on January 5, 1994, did not conclusively show his participation as a co-
conspirator.
The January 14, 2003 Resolution denied Acejas Supplemental Motion, which
prayed for a new trial.
The Issues
Petitioner Hernandez raises the following issues:
I. Whether or not respondent court erred in ruling that [Hernandez] was part of
the conspiracy to extort money from private respondents, despite lack of clear
and convincing evidence.
II. Whether or not the Honorable Sandiganbayan gravely abused its discretion
when it overlooked the fact that the legal requisites of the crime are not
completely present as to warrant [Hernandez] complicity in the crime charged.
III. Whether or not respondent Sandiganbayan, 5th Division, ruled erroneously
when it relied solely on the naked and uncorroborated testimonies of the late
Filomeno Jun Pelingon, Jr. in order to declare the existence of a conspiracy to
commit bribery, as well as the guilt of the accused.
IV. Whether or not [respondent] courts acquittal of co-accused Victor Conanan
and its conviction of [Hernandez] for the offense as charged effectively belies
the existence of a conspiracy.
V. Whether or not the respondent Sandiganbayan committed grave abuse of
discretion amounting to lack of, or in excess of jurisdiction when it found
[Hernandez] guilty beyond reasonable doubt of the crime of direct bribery. [30]
On the other hand, Petitioner Acejas simply enumerates the following points:
6
1. The Conspiracy Theory supposed to have been voluntarily given to him as a guarantee to appear at
2. The presence of lawyer-client relationship; duty to clients cause; lawful the BID office, but he returned it upon the instruction of his superior.[35]
performance of duties The chain of circumstances, however, contradicts the contention of
3. Instigation not entrapment Hernandez. It was he who had taken the passport of Takao Aoyagi. [36] On
4. Credibility of witness and testimony various dates,[37] he met with Takao and Bethel Grace Aoyagi, and
5. Affidavit of desistance; effect: creates serious doubts as to the liability of the also Pelingon, regarding the return of the passport. Hernandez then asked for
accused a down payment on the payoff,[38] during which he directed Bethel Grace to
6. Elements of bad faith deliver the money to Acejas.[39]
7. Elements of the crime (direct bribery)
8. Non-presentation of complaining victim tantamount to suppression of Bethel Grace Aoyagis testimony, which was confirmed by the other witnesses,
evidence[31] proceeded as follows:

PROSECUTOR MONTEMAYOR:

In the main, petitioners are challenging the finding of guilt against them. The Q: When Vlademir Hernandez arrived, what happened?
points they raised are therefore intertwined and will be discussed jointly. A: He got the passport from his pocket and passed it on to Atty. Acejas, sir.

Q: What happened after he gave the passport to Atty. Acejas?

The Courts Ruling A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.

Q: After that, what happened?

The Petitions have no merit. A: Then, [Perlas] gave it to Mr. Aoyagi, sir.

Q: The passport?
A: Yes, sir.
Main Issue:
Finding of Guilt Q: And when Mr. Aoyagi received the passport, what did you do or what did
Mr. Aoyagi do?
A: He checked all the pages and he kept it, sir.
The crime of direct bribery exists when a public officer 1)
agrees to perform an act that constitutes a crime in consideration of any offer, xxxxxxxxx
promise, gift or present; 2) accepts the gift in consideration of the execution of
an act that does not constitute a crime; or 3) abstains from the performance of Q: What did you do with that money after Mr. Aoyagi received the passport?
official duties.[32] A: Because our agreement is that after giving the passport we would give the
money so when Mr. Perlas handed to my husband the passport, I gave the
Petitioners were convicted under the second kind of direct bribery, which money placed on my lap to my husband and he passed it to Mr. Hernandez
contained the following elements: 1) the offender was a public officer, 2) who who refused the same.
received the gifts or presents personally or through another, 3) in consideration
of an act that did not constitute a crime, and 4) that act related to the exercise ATTY. ACEJAS:
of official duties.[33] Your Honor, please, may I just make a clarification that when the witness
referred to the money it pertains to the brown envelope which allegedly
Hernandez claims that the prosecution failed to show his involvement in the contains the money x x x .
crime. Allegedly, he was merely implementing Mission Order No. 93-04-12,
which required him to investigate Takao Aoyagi. [34] The passport was AJ ESCAREAL:
7

Noted.
PROSECUTOR MONTEMAYOR:
Q: Did Mr. Hernandez got hold or touched the envelope?
A: No, sir.
Q: When he [did] not want to receive the envelope, what did your husband do?
A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to
Atty. Acejas so my husband handed it to Atty. Acejas who received the same
and later on passed it to Mr. Perlas.
Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
A: None, sir, he just motioned like this.
INTERPRETER:
Witness motioning by [waving] her two (2) hands, left and right.
PROSECUTOR MONTEMAYOR:
Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Q: And your husband gave the envelope to Atty. Acejas?
A: Yes, sir.
Q: And Atty. Acejas, in turn, handed the said envelope to whom?
A: Expedito Perlas, sir.
Q: Did Expedito Perlas [receive] that envelope?
A: Yes, sir.
Q: After that, what happened?
A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
Q: And then, what happened?
A: After the money was placed where it was, we were surprised, I think, it
happened in just seconds[.] Mr. Vlademir Hernandez immediately left and then
all of a sudden somebody came and picked up the envelope, sir.[40]
Significantly, Hernandez does not address the lingering questions about why
Takao Aoyagi or his representatives had to negotiate for the retrieval of the
passport during the meetings held outside the BID. Ponciano Ortiz, chief of the
Operation and Intelligence Division of the BID, testified that it was not a
standard operating procedure to officially return withheld passports in such
locations.[41] It can readily be inferred that Hernandez had an ulterior motive
for withholding the passport for some time despite the absence of any legal
purpose.
Also, Hernandez cannot claim innocence based
on Conanans acquittal.[42] While the testimony of Pelingon was the only
evidence linking Conanan to the conspiracy,[43] there was an abundance of
evidence showing Hernandezs involvement.
Acejas, on the other hand, belies his involvement in the conspiracy. He attacks
the prosecutions version that he was silent during the negotiations for the
return of the passport.[44] According to him, he kept giving Hernandez an
ultimatum to return the passport, with threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was
prevented by Spouses Aoyagi. His supposed preparedness to file a case
against Hernandez might have just been a charade and was in fact belied
by Pelingons testimony regarding the January 5, 1994 meeting:
ATTY. VALMONTE:
Q: Who arrived first at Aristocrat Restaurant, you or Acejas?
A: Acejas arrived together with Dick Perlas[. T]hey arrived ahead of me, sir.
xxxxxxxxx
Q: When the three (3) of you were talking that was the time that Atty. Acejas
was showing you documents that he was going to file [a] P1 million damage
suit against Hernandez?
A: Yes, sir.
Q: Now, is it not that when Hernandez and Cunanan arrived and you were
talking with each other, Atty. Acejas also threatened, reiterated his threat to
Hernandez that he would file [a] P1 million damage suit should Hernandez
[fails] to return the passport?
A: When the group [was] already there, the P1 million [damage suit] was not
[anymore] mentioned, sir.[45]
8
Even assuming that Acejas negotiated for the return of the passport on his
clients behalf, he still failed to justify his actions during the entrapment
operation. The witnesses all testified that he had received the purported
payoff. On this point, we recount the testimony of Bethel Grace Aoyagi:
PROSECUTOR MONTEMAYOR:
xxxxxxxxx
Q: When he [did] not want to receive the envelope, what did your husband do?
A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to
Atty. Acejas so my husband handed it to Atty. Acejas who received the same
and later on passed it to Mr. Perlas.
Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
A: None, sir, he just motioned like this.
INTERPRETER:
Witness motioning by [waving] her two (2) hands, left and right.
PROSECUTOR MONTEMAYOR:
Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Q: And your husband gave the envelope to Atty. Acejas?
A: Yes, sir.
Q: And Atty. Acejas, in turn, handed the said envelope to whom?
A: Expedito Perlas, sir.
xxxxxxxxx
Q: After that, what happened?
A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
Q: And then, what happened?
WITNESS:
A: After the money was placed where it was, we were surprised, I think, it
happened in just seconds[.] Mr. Vladimir Hernandez immediately left and then
all of a sudden somebody came and picked up the envelope, sir.
PROSECUTOR MONTEMAYOR:
Q: Do you know the identity of that somebody who picked up the envelope?
xxxxxxxxx
A: Victoriano, sir.[46]
Acejas failed to justify why he received the payoff money. It would be illogical
to sustain his contention that the envelope represented the balance of his firms
legal fees. That it was given to Hernandez immediately after the return of the
passport leads to the inescapable conclusion that the money was a
consideration for the return. Moreover, Acejas should have kept the amount if
he believed it to be his. The Court agrees with the Sandiganbayans
pronouncement on this point:
x x x. If he believed that the brown envelope contained the balance of the
acceptance fee, how come he passed it to Perlas? His passing the brown
envelope to Perlas only proves that the same did not contain the balance of
the acceptance fee; otherwise, he should have kept and retained it. Moreover,
the three prosecution witnesses testified that the brown envelope was being
given to Hernandez who refused to accept the same. This further shows that
the brown envelope was not for the balance of the acceptance fee because, if
it were, why was it given to Hernandez.
xxxxxxxxx
Acejas defense was further weakened by the fact that his testimony as to why
he left immediately after the brown envelope was given to him was
uncorroborated.He should have presented accused Victoriano to corroborate
his testimony since it was the latter who allegedly called him and caused him
to leave their table.This, he did not do. The ineluctable conclusion is that he
was, indeed, in cahoots with his co-accused.[47]
Lawyers Duty
Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client
relationship with the complainants. He was supposedly only acting in their best
9
interest[48] and had the right to be present when the passport was to be
returned.[49]
True, as a lawyer, it was his duty to represent his clients in dealing with other
people. His presence at Diamond Hotel for the scheduled return of the
passport was justified. This fact, however, does not support his innocence
Acejas, however, failed to act for or represent the interests of his clients. He
knew of the payoff, but did nothing to assist or protect their rights, a fact that
strongly indicated that he was to get a share. Thus, he received the money
purporting to be the payoff,
even if he was not involved in the entrapment operation. The facts revealed
that he was a conspirator.
The Court reminds lawyers to follow legal ethics[50] when confronted by public
officers who extort money. Lawyers must decline and report the matter to the
authorities.[51] If the extortion is directed at the client, they must advise the
client not to perform any illegal act. Moreover, they must report it to the
authorities, without having to violate the attorney-client privilege.[52] Naturally,
they must not participate in the illegal act.[53]
Acejas did not follow these guidelines. Worse, he conspired with the
extortionists.
Instigation
Also futile is the contention of petitioners that Pelingon instigated the situation
to frame them into accepting the payoff.[54] Instigation is the employment of
ways and means to lure persons into the commission of an offense in order to
prosecute them.[55] As opposed to entrapment, criminal intent originates in the
mind of the instigator.[56]
There was no instigation in the present case, because the chain of
circumstances showed an extortion attempt. In other words, the criminal intent
originated from petitioners, who had arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate
Justice Escareal clarifying question as follows:
AJ ESCAREAL:
[Q:] Did Mr. Hernandez say anything when he returned the passport to your
husband?
A: He did not say anything except that he instructed [the] group to abide with
the agreement that upon handing of the passport, the money would also be
given immediately (magkaliwaan).[57]
Alleged Discrepancies
According to Acejas, Pelingons testimonies given in his Complaint-Affidavit,
Supplemental-Affidavit, inquest testimony, testimony in court, and two
Affidavits of Desistance were contradictory.[58] He cites these particular
portions of Pelingons Affidavit:
5. That having been enlightened of the case, and conscious that I might be
prosecuting innocent men, I have decided on my own disposition, not to further
testify against any of the accused in the Sandiganbayan or in any court or
tribunal, regarding the same cause of action.
6. That this affidavit of desistance to further prosecute is voluntarily executed,
and that no reward, promise, consideration, influence, force or threat was
executed to secure this affidavit.[59]
Pelingon testified that he had executed the Affidavit of Desistance because of
a threat to his life.[60] He did not prepare the Affidavit; neither was it explained
to him. Allegedly, his true testimony was in the first Complaint-Affidavit that he
had executed.[61]
By appearing and testifying during the trial, he effectively repudiated his
Affidavit of Desistance. An affidavit of desistance must be ignored when pitted
against positive evidence given on the witness stand.[62]
Acejas has failed to identify the other material points that were allegedly
inconsistent. The Court therefore adopts the Sandiganbayans finding that
these were minor details that were not indicative of the lack of credibility of the
prosecution witnesses.[63] People v. Eligino[64] is in point:
x x x. While witnesses may differ in their recollections of an incident, it does
not necessarily follow from their disagreement that all of them should be
disbelieved as liars and their testimony completely discarded as worthless. As
long as the mass of testimony jibes on material points, the slight clashing
10
statements neither dilute the witnesses credibility nor the veracity of their For taking direct part in the execution of the crime, Hernandez and Acejas are
testimony. Thus, inconsistencies and contradictions referring to minor details liable as principals.[74] The evidence shows that the
do not, in any way, destroy the credibility of witnesses, for indeed, such parties conspired to extort money from Spouses Aoyagi. A conspiracy exists
inconsistencies are but natural and even enhance credibility as these even if all the parties did not commit the same act, if the participants performed
discrepancies indicate that the responses are honest and unrehearsed. [65] specific acts that indicated unity of purpose in accomplishing a criminal
design.[75] The act of one is the act of all.

Suppression of Evidence
Acejas further raises the issue of suppression of evidence. Aoyagi, from whom
the money was supposedly demanded, should have been presented by the
prosecution as a witness.[66]
WHEREFORE, the Petitions are DENIED, and the assailed Decision and
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.

The discretion on whom to present as prosecution witnesses falls on the

People.[67] The freedom to devise a strategy to convict the accused belongs to
the prosecution.[68] Necessarily, its decision on which evidence, including
which witnesses, to present cannot be dictated by the accused or even by the
trial court.[69] If petitioners believed that Takao Aoyagis testimony was
important to their case, they should have presented him as their witness.[70]

Finally, Acejas claims that his Comment/Objection to the prosecutions Formal

Offer of Evidence was not resolved by the Sandiganbayan. [71] In that
Comment/Objection, he had noted the lateness in the filing of the Formal Offer
of Evidence.

It may readily be assumed that the Sandiganbayan admitted the prosecutions

Formal Offer of Evidence upon the promulgation of its Decision. In effect,
Acejas Comment/Objection was deemed immaterial. It could not overrule the
finding of guilt. Further, it showed no prayer that the Sandiganbayan needed
to act upon.[72]
Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are
conclusive upon this Court.[73] We are convinced that these were clearly based
on the evidence adduced in this case.

In sum, we find that the prosecution proved the elements of direct

bribery. First, there is no question that the offense was committed by a public
officer.BID Agent Hernandez extorted money from the Aoyagi spouses for the
return of the passport and the promise of assistance in procuring a
visa. Petitioner Acejas was his co-conspirator. Second, the offenders received
the money as payoff, which Acejas received for the group and then gave to
Perlas. Third, the money was given in consideration of the return of the
passport, an act that did not constitute a crime. Fourth, both the confiscation
and the return of the passport were made in the exercise of official duties.

11
 C-983184-Q for P58,940.33, all dated April 26, 1994 in the total amount of
JESUS TORRES, G.R. No. 175074 ONE HUNDRED NINETY-SIX THOUSAND SIX HUNDRED FIFTY-FOUR
Petitioner, Present: PESOS and FIFTY-FOUR CENSTAVOS (P196,654.54), Philippine Currency,
VELASCO, JR., J., Chairperson,representing salaries, salary differentials, additional compensation allowance
PERALTA, and Personal Emergency Relief Allowance from January to March 1994 of the
ABAD, employees of the said school, taking advantage of his position and committing
MENDOZA, and the offense in relation to his office, encashed said checks with the Philippine
- versus - SERENO,* JJ. National Bank, Virac, Catanduanes Branch and once in possession of the
Promulgated: money, did then and there willfully, unlawfully and feloniously and with grave
abuse of confidence, misapply, misappropriate, embezzle and convert to his
August 31, 2011 personal use and benefit the aforementioned amount of money, to the damage
and prejudice of the Government.
PEOPLE OF THE PHILIPPINES,
Respondent. Contrary to law.

Upon his arraignment, petitioner pleaded not guilty to the crime

charged. Consequently, trial on the merits ensued.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Evidence for the Prosecution

DECISION
PERALTA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the
Resolution[1] dated September 6, 2006 and Resolution dated October 17,
2006[2] of the Court of Appeals (CA) in CA-G.R. CR No. 29694.
The factual and procedural antecedents are as follows:
In an Information[3] dated November 15, 1994, petitioner Jesus U. Torres was
charged with the crime of Malversation of Public Funds before the Regional
Trial Court (RTC), Branch 42, Virac, Catanduanes, the accusatory portion of
which reads:
That on or about the 27th day of April 1994, or sometime subsequent thereto,
in the Municipality of Virac, Catanduanes, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, a public
officer, being then the Principal of Viga Rural Development High School, Viga,
Catanduanes, and as such by reason of his office and duties is responsible
and accountable for public funds entrusted to and received by him, to wit: PNB
Checks (sic) Nos. C-983182-Q for P42,033.32; C-983183-Q for P95,680.89;
[Petitioner] Jesus Torres y Uchi was the principal of Viga Rural Development
High School (VRDHS). On April 26, 1994, he directed Edmundo Lazado, the
schools collection and disbursing officer, to prepare the checks representing
the teachers and employees salaries, salary differentials, additional
compensation allowance (ACA) and personal emergency relief allowance
(PERA) for the months of January to March, 1994. Lazado prepared three (3)
checks in the total amount of P196,654.54, all dated April 26, 1994, viz: PNB
Check Nos. C-983182-Q for P42,033.32; C-983183-Q for P95,680.89; C-
983184-Q for P58,940.33 (Exhs. A, B and C). The [petitioner] and Amador
Borre, Head Teacher III, signed the three (3) checks (TSN, Aug. 30, 2001, pp.
4-8).
Upon the instruction of the [petitioner], Lazado endorsed the checks and
handed them to the accused. It was the custom in the school for Lazado to
endorse the checks representing the teachers salaries and for the accused to
encash them at PNB, Virac Branch and deliver the cash to Lazado for
distribution to the teachers (Id., pp. 12-17).
The following day, April 27, 1994, the accused encashed the three (3) checks
at PNB, Virac Branch but he never returned to the school to deliver the money
to Lazado (Id., pp. 8-9).[4]
12

Evidence for the Defense
The [petitioner] admitted that he encashed the subject checks at PNB, Virac
Branch in the morning of April 27, 1994 but instead of going back to the school,
he proceeded to the airport and availed of the flight to Manila to seek medical
attention for his chest pain. Two (2) days after, around 4:30 oclock in the
morning of April 29, 1994, while he and his nephew were on the road waiting
for a ride, three (3) armed men held them up and took his bag containing his
personal effects and the proceeds of the subject checks. He reported the
incident to the police authorities, but he failed to recover the money (TSN, Nov.
12, 2002, pp. 11-25).[5]
On August 31, 2005, after finding that the prosecution has established all the
elements of the offense charged, the RTC rendered a Decision[6] convicting
petitioner of the crime of Malversation of Public Funds, the decretal portion of
which reads:
WHEREFORE, the Court finds the accused Jesus Torres y Uchi GUILTY
beyond reasonable doubt of the crime of malversation of public funds as
defined and penalized under Article 217 of the Revised Penal Code, and
hereby sentences him to suffer the indeterminate penalty of imprisonment
ranging from 12 years and 1 day of reclusion temporal, as minimum, and to 18
years, 8 months and 1 day of reclusion temporal, as maximum; to suffer the
penalty of perpetual special disqualification; and to pay the fine of P196,654.54
with subsidiary imprisonment in case of insolvency.
SO ORDERED.[7]
On September 8, 2005, petitioner filed his Notice of Appeal, [8]
where it was
indicated that he was seeking recourse and appealing the decision of the RTC
before the Court of Appeals.
On February 10, 2006, petitioner filed a Manifestation and
Motion[9] acknowledging that he filed the appeal before the wrong
tribunal. Petitioner eventually prayed, among other things, that the case be
referred to the Sandiganbayan for appropriate action.
In its Comment[10] filed on June 29, 2006, the Office of the Solicitor General
prayed that the appeal be dismissed outright, since transmittal to the proper
court, in cases of erroneous modes of appeal, are proscribed.
On September 6, 2006, the CA issued a Resolution dismissing the appeal, the
dispositive portion of which reads:
WHEREFORE, pursuant to the provisions of Section 2, Rule 50 of
the Rules and Section 4 of SC Circular No. 2-90, the instant appeal hereby is
DISMISSED OUTRIGHT for lack of jurisdiction.
SO ORDERED.[11]
Petitioner filed a Motion for Reconsideration,[12] but was denied in the
Resolution[13] dated October 17, 2006.
Hence, the petition raising the sole error:
WHETHER THE HONORABLE COURT OF APPEALS ERRED IN
DISMISSING THE PETITIONERS APPEAL OUTRIGHT INSTEAD OF
CERTIFYING THE CASE TO THE PROPER COURT.[14]
Petitioner maintains that he inadvertently filed the notice of appeal before the
Court of Appeals instead of the Sandiganbayan. Petitioner implores that the
Court exercise its sound discretion and prerogative to relax compliance to
sound procedural rules and to decide the case on the merits, considering that
from the beginning, he has been candid and straightforward about the fact that
the case was wrongfully filed with the Court of Appeals instead of the
Sandiganbayan.
The petition is without merit.
Paragraph 3, Section 4 (c) of Republic Act No. 8249 (RA 8249),[15] which
defined the jurisdiction of the Sandiganbayan, provides:
The Sandiganbayan shall exercise exclusive appellate jurisdiction over
final judgments, resolutions or orders of the regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate jurisdiction as
herein provided.[16]
Hence, upon his conviction, petitioners remedy should have been an appeal
to the Sandiganbayan. There is nothing in said paragraph which can
13
conceivably justify the filing of petitioners appeal before the Court of Appeals
instead of the Sandiganbayan. Clearly, the Court of Appeals is bereft of any
jurisdiction to review the judgment petitioner seeks to appeal.[17]
It must be emphasized, however, that the designation of the wrong court does
not necessarily affect the validity of the notice of appeal. However, the
designation of the proper court should be made within the 15-day period to
appeal. Once made within the said period, the designation of the correct
appellate court may be allowed even if the records of the case are forwarded
to the Court of Appeals. Otherwise, Section 2, Rule 50 of the Rules of Court
would apply,[18] the relevant portion of which states:
Sec. 2. Dismissal of improper appeal to the Court of Appeals. x x x
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court, but shall be dismissed outright.[19]
In the case at bar, petitioner sought correction of the error in filing the appeal
way beyond the expiration of the period to appeal the decision. The RTC
promulgated its Decision on August 31, 2005. Petitioner filed his Notice of
Appeal on September 8, 2005. Petitioner tried to correct the error only
on February 10, 2006 when he filed his Manifestation and Motion. Clearly, this
is beyond the 15-day period to appeal from the decision of the trial
court. Therefore, the CA did not commit any reversible error when it dismissed
petitioners appeal for lack of jurisdiction.
Besides, even if we look into the merits of his arguments, the case is doomed
to fail. Contrary to petitioners argument, We find that he is an accountable
officer within the contemplation of Article 217[20] of the Revised Penal Code,
hence, is untenable.
An accountable public officer, within the purview of Article 217 of the Revised
Penal Code, is one who has custody or control of public funds or property by
reason of the duties of his office.[21] The nature of the duties of the public officer
or employee, the fact that as part of his duties he received public money for
which he is bound to account and failed to account for it, is the factor which
determines whether or not malversation is committed by the accused public
officer or employee. Hence, a school principal of a public high school, such as
petitioner, may be held guilty of malversation if he or she is entrusted with
public funds and misappropriates the same.
Petitioner also posits that he could not be convicted under the allegations in
the Information without violating his constitutional right to be informed of the
accusations against him. He maintains that the Information clearly charged
him with intentional malversation and not malversation through negligence,
which was the actual nature of malversation for which he was convicted by the
trial court. This too lacks merit.
Malversation may be committed either through a positive act of
misappropriation of public funds or property, or passively through
negligence.[22] To sustain a charge of malversation, there must either be
criminal intent or criminal negligence, and while the prevailing facts of a case
may not show that deceit attended the commission of the offense, it will not
preclude the reception of evidence to prove the existence of negligence
because both are equally punishable under Article 217 of the Revised Penal
Code.[23]
More in point, the felony involves breach of public trust, and whether it is
committed through deceit or negligence, the law makes it punishable and
prescribes a uniform penalty therefor. Even when the Information charges
willful malversation, conviction for malversation through negligence may still
be adjudged if the evidence ultimately proves the mode of commission of the
offense.[24] Explicitly stated
x x x [E]ven on the putative assumption that the evidence against petitioner
yielded a case of malversation by negligence, but the information was for
intentional malversation, under the circumstances of this case, his conviction
under the first mode of misappropriation would still be in order. Malversation
is committed either intentionally or by negligence. The dolo or
the culpa present in the offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from mode proved, the same offense
of malversation is involved and conviction thereof is proper. x x x [25]
WHEREFORE, premises considered, the petition is DENIED. The
Resolutions dated September 6, 2006 and October 17, 2006 of the Court of
Appeals in CA-G.R. CR No. 29694 are AFFIRMED.
14
G.R. No. 184908, July 03, 2013
MAJOR JOEL G. CANTOS, Petitioner, v. PEOPLE OF THE PHILIPPINES,
Respondent.
DECISION
VILLARAMA, JR., J.:
Petitioner Major Joel G. Cantos appeals the Decision1 of the Sandiganbayan
in Criminal Case No. SB-07-A/R-0008, which affirmed with modification the
judgment2 of the Regional Trial Court (RTC) of Manila, Branch 47, convicting
him of the crime of Malversation of Public Funds under Article 217 of the
Revised Penal Code, as amended.
In an Information3 dated February 19, 2003, Major Cantos was charged as
follows:cralavvonlinelawlibrary
That on or about December 21, 2002 or sometime prior or subsequent thereto,
in the City of Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then the
Commanding Officer of the 22nd Finance Service Center, based in the
Presidential Security Group, Malaca�ang Park, Manila and as such is
accountable for public funds received and/or entrusted to him by reason of his
office, acting in relation to his office and taking advantage of the same, did
then and there, wi[l]lfully, unlawfully and feloniously take, misappropriate and
convert to his personal use and benefit the amount of THREE MILLION TWO
HUNDRED SEVENTY THOUSAND PESOS (P3,270,000.00), Philippine
Currency, from such public funds received by him by reason of his Office to
the damage and prejudice of the Government in the aforestated amount.
CONTRARY TO LAW.
Upon motion by the prosecution, the trial court issued an Order4 granting the
amendment of the date of the commission of the offense from December 21,
2002 to December 21, 2000, the error being merely clerical. When arraigned,
Major Cantos entered a plea of not guilty.5
At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr.6
He testified that on December 21, 2000, he reported for duty as Disbursing
Officer at the 22nd Finance Service Unit (FSU), Presidential Security Group
(PSG), Malaca�ang Park, Manila. At that time, he did not notice any unusual
incident in the office. He picked up some Bureau of Internal Revenue (BIR)
forms which he filed with the BIR Office at the Port Area, Manila. He returned
to the office at around 10:00 a.m. At around 12:00 noon, his commanding
officer, Major Cantos, called him to his office and informed him that the money
he (Major Cantos) was handling, the Special Duty Allowance for the month of
December, and other Maintenance Operating Expenses in the amount of more
or less P3 Million was missing from his custody. Shocked, he asked Major
Cantos where he kept the money, to which the latter replied that he placed it
in the steel cabinet inside his room. He then inquired why Major Cantos did
not use the safety vault, but Major Cantos did not reply.7
Major Balao further testified that Major Cantos asked him to get a screwdriver
so he went out of the office and got one from his vehicle. He gave the
screwdriver to Major Cantos, who used it to unscrew the safety vault. Then, he
left the office and handed the screwdriver to Sgt. Tumabcao. After a few
minutes, Major Cantos instructed him to go to the house of Major Conrado
Mendoza in Taguig to get the safety vault�s combination number. However,
Major Mendoza was not around. When he returned to the office at around 4:00
p.m., the National Bureau of Investigation (NBI) personnel took his fingerprints.
He learned that all the personnel of the 22nd FSU were subjected to
fingerprinting. Thereafter, Col. Espinelli tried to force him to admit that he took
the money, but he maintained that he was not the one who took it.8
In his defense, Major Cantos testified that on July 2000, he was assigned as
the Commanding Officer of the 22nd FSU of the PSG, Malaca�ang Park,
Manila. His duty was to supervise the disbursement of funds for the PSG
personnel and to perform other finance duties as requested by the PSG
Commander, Gen. Rodolfo Diaz. On December 19, 2000, he received a check
from Director Aguas in the amount of P1,975,000 representing the Special
Allowance of PSG personnel. Accompanied by two personnel, he went to the
Land Bank branch just across Pasig River and encashed the check. He placed
the money in a duffel bag and kept it inside the steel cabinet in his office
together with the P1,295,000 that was earlier also entrusted to him by Gen.
Diaz. Major Cantos added that as far as he knows, he is the only one with the
keys to his office. Although there was a safety vault in his office, he opted to
place the money inside the steel cabinet because he was allegedly previously
informed by his predecessor, Major Conrado Mendoza, that the safety vault
was defective. He was also aware that all personnel of the 22nd FSU had
unrestricted access to his office during office hours.9
Major Cantos also narrated that on December 20, 2000, he arrived at the office
at around 9:00 a.m. and checked the steel filing cabinet. He saw that the
money was still there. He left the office at around 4:00 p.m. to celebrate with
his wife because it was their wedding anniversary. On the following day,
December 21, 2000, he reported for work around 8:30 a.m. and proceeded
with his task of signing vouchers and documents. Between 9:00 a.m. to 10:00
15
a.m., he inspected the steel cabinet and discovered that the duffel bag which
contained the money was missing. He immediately called then Capt. Balao to
his office and asked if the latter saw someone enter the room. Capt. Balao
replied that he noticed a person going inside the room, but advised him not to
worry because he is bonded as Disbursing Officer.10
In a state of panic, Major Cantos asked for Capt. Balao�s help in finding the
money. Capt. Balao asked him how the money was lost and why was it not in
the vault, to which he replied that he could not put it there because the vault
was defective. Capt. Balao then suggested that they should make it appear
that the money was lost in the safety vault. In pursuit of this plan, Capt. Balao
went out of the office and returned with a pair of pliers and a screwdriver. Upon
his return, Capt. Balao went directly to the vault to unscrew it. At this point,
Major Cantos told him not to continue anymore as he will just inform Gen. Diaz
about the missing funds. Major Cantos was able to contact Gen. Diaz through
his mobile phone and was advised to just wait for Col. Espinelli. When Col.
Espinelli arrived at the office, Col. Espinelli conducted an investigation of the
incident.11
Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General Office
(JAGO), likewise conducted an investigation of the incident. His testimony was
however dispensed with as the counsels stipulated that he prepared the
Investigation Report, and that if presented, the same would be admitted by
defense counsel.12 It likewise appears from the evidence that Police Inspector
Jesus S. Bacani of the Philippine National Police (PNP) administered a
polygraph examination on Major Cantos and the result showed that he was
telling the truth.13
On April 27, 2007, the RTC rendered a decision convicting Major Cantos of
the crime charged, to wit:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing premises, the Court finds the accused
Major Joel G. Cantos GUILTY beyond reasonable doubt of the crime of
Malversation of Public Funds, under paragraph 4 of Article 217 of the Revised
Penal Code, and, there being no mitigating or aggravating circumstance
present, hereby sentences him to an indeterminate penalty of imprisonment
for a period of ten (10) years and one (1) day of Prision Mayor, as minimum,
to Eighteen (18) Years, eight (8) months and one (1) day of Reclusion
Temporal, as maximum; to reimburse the AFP Finance Service Center,
Presidential Security Group, Armed Forces of the Philippines the amount of
Three Million Two Hundred Seventy Thousand Pesos (P3,270,000.00); to pay
a fine of Three Million Two Hundred Seventy Thousand Pesos
(P3,270,000.00); to suffer perpetual special disqualification from holding any
public office; and to pay the costs.
SO ORDERED.14
In rendering a judgment of conviction, the RTC explained that although there
was no direct proof that Major Cantos appropriated the money for his own
benefit, Article 217 of the Revised Penal Code, as amended, provides that the
failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing funds or property to
personal uses. The RTC concluded that Major Cantos failed to rebut this
presumption.
Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his
conviction by the trial court.
On July 31, 2008, the Sandiganbayan promulgated the assailed Decision, the
dispositive portion of which reads as follows:cralavvonlinelawlibrary
IN VIEW OF THE FOREGOING, the Decision promulgated on May 3, 2007 in
Criminal Case No. 03-212248 of the Regional Trial Court, National Capital
Judicial Region, Branch 47, Manila finding the accused-appellant Major Joel
G. Cantos GUILTY beyond reasonable doubt of the crime of Malversation of
Public Funds under Article 217 of the Revised Penal Code is hereby
AFFIRMED, with the modification that instead of being convicted of
malversation through negligence, the Court hereby convicts the accused of
malversation through misappropriation. The penalty imposed by the lower
court is also likewise AFFIRMED.
SO ORDERED.15
The Sandiganbayan sustained the ruling of the RTC. It held that in the crime
of malversation, all that is necessary for conviction is proof that the
accountable officer had received public funds and that he did not have them
in his possession when demand therefor was made. There is even no need of
direct evidence of personal misappropriation as long as there is a shortage in
his account and petitioner cannot satisfactorily explain the same. In this case,
the Sandiganbayan found petitioner liable for malversation through
misappropriation because he failed to dispute the presumption against him.
The Sandiganbayan noted that petitioner�s claim that the money was taken
by robbery or theft has not been supported by sufficient evidence, and is at
most, self-serving.
16
Contending that the Sandiganbayan Decision erred in affirming his convicting,
Major Cantos filed a motion for reconsideration. In its Resolution16 dated
October 6, 2008, however, the Sandiganbayan denied the motion.
Hence, the present petition for review on certiorari. Petitioner assails the
Decision of the Sandiganbayan based on the following
grounds:cralavvonlinelawlibrary
I.
THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING
PETITIONER'S CONVICTION FOR MALVERSATION DESPITE ABSENCE
OF EVIDENCE SHOWING THAT THE FUNDS WERE CONVERTED TO THE
PERSONAL USE OF PETITIONER.
II.
THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING
PETITIONER'S CONVICTION ON THE BASIS OF THE MERE
PRESUMPTION CREATED BY ARTICLE 217, PARAGRAPH 4, OF THE
REVISED PENAL CODE IN VIEW OF THE ATTENDANT CIRCUMSTANCES
IN THE PRESENT CASE.17nadcralavvonlinelawlibrary
Essentially, the basic issue for our resolution is: Did the Sandiganbayan err in
finding petitioner guilty beyond reasonable doubt of the crime of malversation
of public funds?
Petitioner argues that mere absence of funds is not sufficient proof of
misappropriation which would warrant his conviction. He stresses that the
prosecution has the burden of establishing his guilt beyond reasonable doubt.
In this case, petitioner contends that the prosecution failed to prove that he
appropriated, took, or misappropriated, or that he consented or, through
abandonment or negligence, permitted another person to take the public
funds.
On the other hand, the People, represented by the Office of the Special
Prosecutor (OSP), argues that petitioner, as an accountable officer, may be
convicted of malversation of public funds even if there is no direct evidence of
misappropriation. The OSP asserts that the only evidence required is that
there is a shortage in the officer�s account which he has not been able to
explain satisfactorily.
The petition must fail.
The Sandiganbayan did not commit a reversible error in its decision convicting
petitioner of malversation of public funds, which is defined and penalized under
Article 217 of the Revised Penal Code, as amended, as
follows:cralavvonlinelawlibrary
Art. 217. Malversation of public funds or property. � Presumption of
malversation. � Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property,
wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property shall suffer:cralavvonlinelawlibrary
xxxx
4. The penalty of reclusion temporal in its medium and maximum periods, if
the amount involved is more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use. (Emphasis and underscoring supplied.)
Thus, the elements of malversation of public funds under Article 217 of the
Revised Penal Code are:cralavvonlinelawlibrary
1. that the offender is a public officer;chanroblesvirtualawlibrary
2. that he had the custody or control of funds or property by reason of the
duties of his office;chanroblesvirtualawlibrary
3. that those funds or property were public funds or property for which he was
accountable; and
4. that he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them.18
17
We note that all the above-mentioned elements are here present. Petitioner
was a public officer occupying the position of Commanding Officer of the 22nd
FSU of the AFP Finance Center, PSG. By reason of his position, he was
tasked to supervise the disbursement of the Special Duty Allowances and
other Maintenance Operating Funds of the PSG personnel, which are
indubitably public funds for which he was accountable. Petitioner in fact
admitted in his testimony that he had complete control and custody of these
funds. As to the element of misappropriation, indeed petitioner failed to rebut
the legal presumption that he had misappropriated the fees to his personal
use.
the Sandiganbayan�s finding that petitioner�s guilt has been proven beyond
reasonable doubt.
WHEREFORE, the petition is DENIED. The Decision dated July 31, 2008 of
the Sandiganbayan in Criminal Case No. SB-07-A/R-0008 convicting Major
Joel G. Cantos of the crime of Malversation of Public Funds is AFFIRMED and
UPHELD.
With costs against the petitioner.

In convicting petitioner, the Sandiganbayan cites the presumption in Article

217 of the Revised Penal Code, as amended, which states that the failure of
a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, is prima
facie evidence that he has put such missing fund or property to personal uses.
The presumption is, of course, rebuttable. Accordingly, if petitioner is able to
present adequate evidence that can nullify any likelihood that he put the funds
or property to personal use, then that presumption would be at an end and the
prima facie case is effectively negated.

In this case, however, petitioner failed to overcome this prima facie evidence
of guilt. He failed to explain the missing funds in his account and to restitute
the amount upon demand. His claim that the money was taken by robbery or
theft is self-serving and has not been supported by evidence. In fact, petitioner
even tried to unscrew the safety vault to make it appear that the money was
forcibly taken. Moreover, petitioner�s explanation that there is a possibility
that the money was taken by another is belied by the fact that there was no
sign that the steel cabinet was forcibly opened. We also take note of the fact
that it was only petitioner who had the keys to the steel cabinet.19 Thus, the
explanation set forth by petitioner is unsatisfactory and does not overcome the
presumption that he has put the missing funds to personal use.

Malversation is committed either intentionally or by negligence. The dolo or

the culpa present in the offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the same
offense of malversation is involved and conviction thereof is proper.20 All that
is necessary for conviction is sufficient proof that the accountable officer had
received public funds, that he did not have them in his possession when
demand therefor was made, and that he could not satisfactorily explain his
failure to do so. Direct evidence of personal misappropriation by the accused
is hardly necessary as long as the accused cannot explain satisfactorily the
shortage in his accounts.21 To our mind, the evidence in this case is
thoroughly inconsistent with petitioner�s claim of innocence. Thus, we sustain
18
G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a municipal mayor charged with illegal diversion of food
intended for those suffering from malnutrition to the beneficiaries of
reconsideration projects affecting the homes of victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold James M.
Ysidoro before the Sandiganbayan in Criminal Case 28228 of violation of
illegal use of public propertry (technical malversation) under Article 220 of the
Revised Penal Code.1
The facts show that the Municipal Social Welfare and Development Office
(MSWDO) of Leyte, Leyte, operated a Core Shelter Assistance Program
(CSAP) that provided construction materials to indigent calamity victims with
which to rebuild their homes. The beneficiaries provided the labor needed for
construction.
On June 15, 2001 when construction for calamity victims in Sitio Luy-a,
Barangay Tinugtogan, was 70% done, the beneficiaries stopped reporting for
work for the reason that they had to find food for their families. This worried
Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such construction
stoppage could result in the loss of construction materials particularly the
cement. Thus, she sought the help of Cristina Polinio (Polinio), an officer of
the MSWDO in charge of the municipality’s Supplemental Feeding Program
(SFP) that rationed food to malnourished children. Polinio told Garcia that the
SFP still had sacks of rice and boxes of sardines in its storeroom. And since
she had already distributed food to the mother volunteers, what remained
could be given to the CSAP beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte
Municipal Mayor, to seek his approval. After explaining the situation to him,
Ysidoro approved the release and signed the withdrawal slip for four sacks of
rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor Ysidoro
instructed Garcia and Polinio, however, to consult the accounting department
regarding the matter. On being consulted, Eldelissa Elises, the supervising
clerk of the Municipal Accountant’s Office, signed the withdrawal slip based on
her view that it was an emergency situation justifying the release of the goods.
Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards,
Garcia reported the matter to the MSWDO and to the municipal auditor as per
auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan
of Leyte, filed the present complaint against Ysidoro. Nierna Doller, Alfredo's
wife and former MSWDO head, testified that the subject SFP goods were
intended for its target beneficiaries, Leyte’s malnourished children. She also
pointed out that the Supplemental Feeding Implementation Guidelines for
Local Government Units governed the distribution of SFP goods.3 Thus,
Ysidoro committed technical malversation when he approved the distribution
of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a
project also meant for the poor of the municipality was valid since they came
from the savings of the SFP and the Calamity Fund. Ysidoro also claims good
faith, believing that the municipality’s poor CSAP beneficiaries were also in
urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal
Auditor conducted a comprehensive audit of their municipality in 2001 and
found nothing irregular in its transactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond
reasonable doubt of technical malversation. But, since his action caused no
damage or embarrassment to public service, it only fined him P1,698.00 or
50% of the sum misapplied. The Sandiganbayan held that Ysidoro applied
public property to a pubic purpose other than that for which it has been
appropriated by law or ordinance. On May 12, 2010 the Sandiganbayan
denied Ysidoro’s motion for reconsideration. On June 8, 2010 Ysidoro
appealed the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s finding that he committed
technical malversation. He particularly raises the following questions:
1. Whether or not he approved the diversion of the subject goods to a public
purpose different from their originally intended purpose;
2. Whether or not the goods he approved for diversion were in the nature of
savings that could be used to augment the other authorized expenditures of
the municipality;
3. Whether or not his failure to present the municipal auditor can be taken against him;
and
4. Whether or not good faith is a valid defense for technical malversation.
19

The Court’s Rulings
One. The crime of technical malversation as penalized under Article 220 of the Revised
Penal Code4 has three elements: a) that the offender is an accountable public officer;
b) that he applies public funds or property under his administration to some public use;
and c) that the public use for which such funds or property were applied is different
from the purpose for which they were originally appropriated by law or ordinance.5
Ysidoro claims that he could not be held liable for the offense under its third element
because the four sacks of rice and two boxes of sardines he gave the CSAP
beneficiaries were not appropriated by law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte
enacted Resolution 00-133 appropriating the annual general fund for 2001.6 This
appropriation was based on the executive budget7 which allocated P100,000.00 for the
SFP and P113,957.64 for the Comprehensive and Integrated Delivery of Social
Services8 which covers the CSAP housing projects.9 The creation of the two items
shows the Sanggunian’s intention to appropriate separate funds for SFP and the CSAP
in the annual budget.
Since the municipality bought the subject goods using SFP funds, then those goods
should be used for SFP’s needs, observing the rules prescribed for identifying the
qualified beneficiaries of its feeding programs. The target clientele of the SFP according
to its manual10 are: 1) the moderately and severely underweight pre-school children
aged 36 months to 72 months; and 2) the families of six members whose total monthly
income is P3,675.00 and below.11 This rule provides assurance that the SFP would
cater only to the malnourished among its people who are in urgent need of the
government’s limited resources.
Ysidoro disregarded the guidelines when he approved the distribution of the goods to
those providing free labor for the rebuilding of their own homes. This is technical
malversation. If Ysidoro could not legally distribute the construction materials
appropriated for the CSAP housing beneficiaries to the SFP malnourished clients
neither could he distribute the food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and
that, therefore, the same could already be diverted to the CSAP beneficiaries. He relies
on Abdulla v. People12 which states that funds classified as savings are not considered
appropriated by law or ordinance and can be used for other public purposes. The Court
cannot accept Ysidoro’s argument.
The subject goods could not be regarded as savings. The SFP is a continuing program
that ran throughout the year. Consequently, no one could say in mid-June 2001 that
SFP had already finished its project, leaving funds or goods that it no longer needed.
The fact that Polinio had already distributed the food items needed by the SFP
beneficiaries for the second quarter of 2001 does not mean that the remaining food
items in its storeroom constituted unneeded savings. Since the requirements of hungry
mouths are hard to predict to the last sack of rice or can of sardines, the view that the
subject goods were no longer needed for the remainder of the year was quite
premature.
In any case, the Local Government Code provides that an ordinance has to be enacted
to validly apply funds, already appropriated for a determined public purpose, to some
other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available
exclusively for the specific purpose for which they have been appropriated. No
ordinance shall be passed authorizing any transfer of appropriations from one item to
another. However, the local chief executive or the presiding officer of the sanggunian
concerned may, by ordinance, be authorized to augment any item in the approved
annual budget for their respective offices from savings in other items within the same
expense class of their respective appropriations.
The power of the purse is vested in the local legislative body. By requiring an ordinance,
the law gives the Sanggunian the power to determine whether savings have accrued
and to authorize the augmentation of other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the
diversion of the subject goods, such finding should be respected. The SB ruled,
however, that since Ysidoro failed to present the municipal auditor at the trial, the
presumption is that his testimony would have been adverse if produced. Ysidoro argues
that this goes against the rule on the presumption of innocence and the presumption of
regularity in the performance of official functions.
Ysidoro may be right in that there is no basis for assuming that had the municipal
auditor testified, his testimony would have been adverse to the mayor. The municipal
auditor’s view regarding the transaction is not conclusive to the case and will not
necessarily negate the mayor’s liability if it happened to be favorable to him. The Court
will not, therefore, be drawn into speculations regarding what the municipal auditor
would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP
goods for the CSAP beneficiaries came, not from him, but from Garcia and Polinio; and,
second, he consulted the accounting department if the goods could be distributed to
those beneficiaries. Having no criminal intent, he argues that he cannot be convicted
of the crime.1âwphi1
But criminal intent is not an element of technical malversation. The law punishes the
act of diverting public property earmarked by law or ordinance for a particular public
purpose to another public purpose. The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes a criminal offense because
positive law forbids its commission based on considerations of public policy, order, and
convenience.13 It is the commission of an act as defined by the law, and not the
character or effect thereof, that determines whether or not the provision has been
violated. Hence, malice or criminal intent is completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted,
constitutes the crime of technical malversation. The law and this Court, however,
recognize that his offense is not grave, warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the
Sandiganbayan in Criminal Case 28228 dated February 8, 2010.
SO ORDERED.
20
G.R. No. 166680, July 07, 2014
ALOYSIUS DAIT LUMAUIG, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
A prior notice or demand for liquidation of cash advances is not a
condition sine qua non before an accountable public officer may be held liable
under Article 2181 of the Revised Penal Code.
Before us is a Petition for Review on Certiorari filed under Rule 45 of the Rules
of Court of the September 10, 2004 Decision2 of the Sandiganbayan in
Criminal Case No. 26528 and its January 11, 2005 Resolution3 denying
reconsideration thereo.
The Information4 dated January 25, 2001 under which petitioner Aloysius Dait
Lumauig (petitioner) was tried and convicted has this accusatory
portion:chanroblesvirtuallawlibrary
That in or about August 1994 or immediately prior or subsequent thereto, in
Alfonso Lista, Ifugao and within the jurisdiction of this Honorable Court, the
above-named accused then Municipal Mayor of Alfonso Lista, Ifugao, and as
such accountable public officer, and responsible for the amount of
P101,736.00 which the accused received by way of cash advance for payment
of the insurance coverage of the twelve (12) motorcycle[s] purchased by the
Municipality, and, hence with the corresponding duty under the law to account
for the same, did then and there, willfully and feloniously fail to liquidate and
account for the same to the damage and prejudice of the Government.5
The facts are matters of record or otherwise undisputed.
Sometime in January 1998, Commission on Audit (COA) Auditor Florence L.
Paguirigan examined the year-end reports involving the municipal officials of
Alfonso Lista, Ifugao. During the course of her examination of the records and
related documents of the municipality, she came across a disbursement
voucher6 for P101,736.00 prepared for petitioner, a former mayor of the
municipality, as cash advance for the payment of freight and other cargo
charges for 12 units of motorcycles supposed to be donated to the
municipality. The amount was covered by Land Bank Check No.
118942007 dated August 29, 1994 wherein the payee is petitioner. Her further
investigation of the accounting records revealed that no payment intended for
the charge was made to Royal Cargo Agencies for the month of August 1994.
Thus, she issued a certification8 to this effect on November 29, 2001. She
likewise claimed that she prepared two letters to inform the petitioner of his
unliquidated cash advance but the same were not sent to him because she
could not get his exact address despite efforts exerted. She averred that on
June 4, 2001, petitioner paid the subject cash advance before the treasurer of
the municipality, for which reason, incumbent Mayor Glenn D. Prudenciano
executed an Affidavit of Desistance.9
Petitioner admitted having obtained the cash advance of P101,736.00 during
his incumbency as municipal mayor of Alfonso Lista, Ifugao. 10 This amount
was intended for the payment of freight and insurance coverage of 12 units of
motorcycles to be donated to the municipality by the City of Manila. However,
instead of motorcycles, he was able to secure two buses and five patrol cars.
He claimed that it never came to his mind to settle or liquidate the amount
advanced since the vehicles were already turned over to the municipality. He
alleged that he was neither informed nor did he receive any demand from COA
to liquidate his cash advances. It was only in 2001 while he was claiming for
separation pay when he came to know that he still has an unliquidated cash
advance. And so as not to prolong the issue, he paid the amount of
P101,736.00 to the municipal treasurer on June 4, 2001.
From the same facts stemmed an Information for violation of Section 3 of
Republic Act (RA) No. 301911docketed as Criminal Case No. 26527 against
petitioner for having allegedly utilized the cash advance for a purpose other
than for which it was obtained.
On September 10, 2004, after a joint trial, the Sandiganbayan rendered a
consolidated Decision12disposing thusly:chanroblesvirtuallawlibrary
WHEREFORE, premises considered the Court rules as follows:
1. In Criminal Case No. 26527, accused ALOYSIUS DAIT LUMAUIG is hereby
ACQUITTED. No civil liability shall be imposed there being no basis for its
award. The cash bond posted for his provisional liberty is ordered returned to
him, subject to the usual accounting and auditing procedure; and
2. In Criminal Case No. 26528, accused ALOYSIUS DAIT LUMAUIG is hereby
CONVICTED of the felony of Failure of Accountable Officer to Render
Accounts under Article 218 of the Revised Penal Code. He is hereby
sentenced to a straight penalty of six months and one (1) day and a fine of
Php1,000.00.
SO ORDERED.13
On January 11, 2005, the Sandiganbayan promulgated its
Resolution14 denying petitioner�s Urgent Motion for Reconsideration.15
Hence, this Petition.
21
After a thorough review of the records of the case and a judicious consideration (4) That he fails to do so for a period of two months after such account should
of the arguments of the petitioner, the Court does not find sufficient basis to be rendered.18
reverse the judgment of conviction. From the prevailing facts, we entertain no
doubt on the guilt of petitioner. The glaring differences between the elements of these two offenses
necessarily imply that the requisite evidence to establish the guilt or innocence
The acquittal of petitioner in the of the accused would certainly differ in each case. Hence, petitioner�s
anti- graft case is not a bar to his acquittal in the anti-graft case provides no refuge for him in the present case
conviction for failure to render an given the differences between the elements of the two offenses.
account in the present case.
Prior demand to liquidate is not a
Petitioner stakes the present Petition on the assertion that since the cases for requisite for conviction under Article 218
which he was indicted involve the same subject cash advance in the amount of the Revised Penal Code.
of P101,736.00, his exoneration in the anti-graft case should likewise
exculpate him from further liability in the present case. The central aspect of petitioner�s next argument is that he was not reminded
of his unliquidated cash advances. The Office of the Special Prosecutor
We are not persuaded. countered that Article 218 does not require the COA or the provincial auditor
to first make a demand before the public officer should render an account. It is
It is undisputed that the two charges stemmed from the same incident. sufficient that there is a law or regulation requiring him to render an account.
�However, [we have] consistently held that the same act may give rise to two The question has been settled in Manlangit v. Sandiganbayan19 where we
or more separate and distinct charges.�16Further, because there is a variance ruled that prior demand to liquidate is not necessary to hold an accountable
between the elements of the two offenses charged, petitioner cannot safely officer liable for violation of Article 218 of the Revised Penal
assume that his innocence in one case will extend to the other case even if Code:chanroblesvirtuallawlibrary
both cases hinge on the same set of evidence. x x x [W]e are asked to resolve whether demand is necessary for a conviction
of a violation of Article 218 of the Revised Penal Code.
To hold a person criminally liable under Section 3(e) of RA 3019, the following Citing United States v. Saberon, petitioner contends that Article 218 punishes
elements must be present:chanroblesvirtuallawlibrary the refusal of a public employee to render an account of funds in his charge
(1) That the accused is a public officer or a private person charged in when duly required by a competent officer. He argues that he cannot be
conspiracy with the former; convicted of the crime unless the prosecution has proven that there was a
(2) That said public officer commits the prohibited acts during the performance demand for him to render an account. Petitioner asserts that COA Circular No.
of his or her official duties or in relation to his or her public positions; 90-331 provides that the public officer shall be criminally liable for failure to
(3) That he or she causes undue injury to any party, whether the government settle his accounts after demand had been made. Moreover, petitioner asserts
or a private party; that the case had become moot and academic since he already submitted his
(4) That such injury is caused by giving unwarranted benefits, advantage or liquidation report. For the People, the Office of the Special Prosecutor (OSP)
preference to such parties; and counters that demand is not an element of the offense and that it is sufficient
(5) That the public officer has acted with manifest partiality, evident bad faith that there is a law or regulation requiring the public officer to render an account.
or gross inexcusable negligence. 17 The OSP insists that Executive Order No. 292, Presidential Decree No. 1445,
the COA Laws and Regulations, and even the Constitution mandate that public
On the other hand, the elements of the felony punishable under Article 218 of officers render an account of funds in their charge. It maintains that the instant
the Revised Penal Code are:chanroblesvirtuallawlibrary case differs from Saberon which involved a violation of Act No. 1740 where
(1) That the offender is a public officer whether in the service or separated prior demand was required. In this case involving a violation of Article 218,
therefrom; prior demand is not required. Moreover, the OSP points out that petitioner even
(2) That he must be an accountable officer for public funds or property; admitted his failure to liquidate the funds within the prescribed period, hence, he should
(3) That he is required by law or regulation to render accounts to the COA or be convicted of the crime.
to a provincial auditor; and,
22
We shall now resolve the issue at hand. cash advance when he later discovered and was confronted with his delinquency, and
(2) the COA did not immediately inform him of his unliquidated cash advance.
Article 218 consists of the following elements:
1. that the offender is a public officer, whether in the service or separated On this point, we partially agree with petitioner.
therefrom;
2. that he must be an accountable officer for public funds or property; In sentencing petitioner to a straight penalty of six months and one day of prisi�n
3. that he is required by law or regulation to render accounts to the Commission correccional and a fine of P1,000.00, the Sandiganbayan correctly considered the
on Audit, or to a provincial auditor; and mitigating circumstance of voluntary surrender, as borne by the records, 21 in favor of
4. that he fails to do so for a period of two months after such accounts should be petitioner. However, it failed to consider the mitigating circumstance of return or full
rendered. restitution of the funds that were previously unliquidated.
Nowhere in the provision does it require that there first be a demand before an
accountable officer is held liable for a violation of the crime. The law is very clear. Where In malversation of public funds, the payment, indemnification, or reimbursement of the
none is provided, the court may not introduce exceptions or conditions, neither may it funds misappropriated may be considered a mitigating circumstance being analogous
engraft into the law qualifications not contemplated. Where the law is clear and to voluntary surrender.22Although this case does not involve malversation of public
unambiguous, it must be taken to mean exactly what it says and the court has no choice funds under Article 217 of the Revised Penal Code but rather failure to render an
but to see to it that its mandate is obeyed. There is no room for interpretation, but only account under Article 218 (i.e., the succeeding Article found in the same Chapter), the
application. same reasoning may be applied to the return or full restitution of the funds that were
previously unliquidated in considering the same as a mitigating circumstance in favor
Petitioner�s reliance on Saberon is misplaced. As correctly pointed out by the of petitioner.
OSP, Saberon involved a violation of Act No. 1740 whereas the present case involves
a violation of Article 218 of the Revised Penal Code. Article 218 merely provides that The prescribed penalty for violation of Article 218 is prisi�n correccional in its minimum
the public officer be required by law and regulation to render account. Statutory period or six months and one day to two years and four months, or by a fine ranging
construction tells us that in the revision or codification of laws, all parts and provisions from 200 to 6,000 pesos, or both. Considering that there are two mitigating
of the old laws that are omitted in the revised statute or code are deemed repealed, circumstances and there are no aggravating circumstances, under Article 64 (5) 23 of
unless the statute or code provides otherwise.20 the Revised Penal Code, the imposable penalty is the penalty next lower to the
prescribed penalty which, in this case, is arresto mayor in its maximum period or four
Petitioner is liable for violation of Article months and one day to six months.
218 of the Revised Penal Code.
The Indeterminate Sentence Law, under Section 2, 24 is not applicable to, among
Section 5 of COA Circular No. 90-331, the circular in force at the time petitioner availed others, cases where the maximum term of imprisonment does not exceed one year. In
of the subject cash advance, pertinently provides:chanroblesvirtuallawlibrary determining �whether an indeterminate sentence and not a straight penalty is proper,
5. LIQUIDATION OF CASH ADVANCES what is considered is the penalty actually imposed by the trial court, after considering
the attendant circumstances, and not the imposable penalty.�25 In the case at bar,
5.1 The AO (Accountable Officer) shall liquidate his cash advance as follows:x x x since the maximum of the imposable penalty is six months, then the possible maximum
term that can be actually imposed is surely less than one year. Hence, the
5.1.2 Petty Operating Expenses and Field Operating Expenses - within 20 days after Indeterminate Sentence Law is not applicable to the present case. As a result, and in
the end of the year; subject to replenishment during the year. view of the attendant circumstances in this case, we deem it proper to impose a straight
Since petitioner received the subject cash advance sometime in 1994, he was, thus, penalty of four months and one day of arresto mayor and delete the imposition of fine.
required to liquidate the same on or before January 20, 1995. Further, to avoid liability WHEREFORE, the Petition is GRANTED IN PART. The Decision of the
under Article 218, he should have liquidated the cash advance within two months from Sandiganbayan in Criminal Case No. 26528 dated September 10, 2004 convicting
the time it was due, or on or before March 20, 1995. In the case at bar, petitioner petitioner of the felony of Failure of Accountable Officer to Render Accounts under
liquidated the subject cash advance only on June 4, 2001. Hence, as correctly found Article 218 of the Revised Penal Code is AFFIRMED with the
by the Sandiganbayan, petitioner was liable for violation of Article 218 because it took following MODIFICATIONS:
him over six years before settling his accounts.
1. Petitioner is sentenced to a straight penalty of four months and one day of arresto
The penalty imposed on petitioner should be modified. � mayor, and

Petitioner argues that assuming that he is liable for violation of Article 218, he should 2. The imposition of fine in the amount of P1,000.00 is deleted.
be meted a lesser penalty considering that (1) he subsequently liquidated the subject
23
G.R. No. 172602 April 13, 2007
HENRY T. GO, Petitioner,
vs.
THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE
SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for certiorari under Rules 65 of the Rules of
Court filed by Henry T. Go seeking to nullify the Resolution dated December
6, 2005 of the Sandiganbayan in Criminal Case No. 28092, entitled People of
the Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go, which denied his
motion to quash. Likewise sought to be nullified is the Sandiganbayan
Resolution of March 24, 2006 denying petitioner Go’s motion for
reconsideration.
The factual and procedural antecedents of the case are as follows:
On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine
International Air Terminals Co., Inc. (PIATCO),1 declaring as null and void the
1997 Concession Agreement, the Amended and Restated Concession
Agreement (ARCA), and the Supplemental Contracts entered into between the
Government, through the Department of Transportation and Communications
(DOTC) and the Manila International Airport Authority (MIAA), and PIATCO.
By the aforementioned contracts (collectively known as the PIATCO
contracts), the Government awarded in favor of PIATCO the project for the
development of the Ninoy Aquino International Airport Passenger Terminal III
(NAIA IPT III) under a build-operate-and-transfer (BOT) scheme pursuant to
Republic Act (RA) No. 6957 as amended by RA 7718 (BOT Law).2
The Court ruled that Paircargo Consortium, PIATCO’s predecessor-in-interest,
was not a qualified bidder as it failed to meet the financial capability
requirement under the BOT Law. Moreover, the PIATCO contracts were
declared null and void for being contrary to public policy. The penultimate
paragraph of the Court’s Decision states thus:
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial
capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the
award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the
1997 Concession Agreement contains material and substantial amendments,
which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon,
the 1997 Concession Agreement is similarly null and void for being contrary to
public policy. The provisions under Section 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in
relation to Section 1.06 of the ARCA, which constitute a direct government
guarantee expressly prohibited by, among others, the BOT Law and its
Implementing Rules and Regulations are also null and void. The Supplements,
being accessory contracts to the ARCA, are likewise null and void.3
Subsequently, an affidavit-complaint, later amended, was filed with the Office
of the Ombudsman by Ma. Cecilia L. Pesayco, Corporate Secretary of Asia’s
Emerging Dragon Corporation (AEDC), charging several persons in
connection with the NAIA IPT III project. The AEDC was the original proponent
thereof which, however, lost to PIATCO when it failed to match the latter’s bid
price.
After conducting a preliminary investigation thereon, the Office of the
Ombudsman filed with the Sandiganbayan the Information dated January 13,
2005 charging Vicente C. Rivera, as then DOTC Secretary, and petitioner Go,
as Chairman and President of PIATCO, with violation of Section 3(g) 4 of RA
3019, also known as the Anti-Graft and Corrupt Practices Act. The case was
docketed as Criminal Case No. 28092, entitled People of the Philippines vs.
Vicente C. Rivera, Jr. and Henry T. Go. The Information reads:
INFORMATION
The undersigned Graft Investigation and Prosecution Officer II, Office of the
Deputy Ombudsman for Luzon, accuses VICENTE C. RIVERA, JR. and
HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as follows:
On or about November 26, 1998, or sometime prior or subsequent thereto, in
Quezon City, Philippines and within the jurisdiction of this Honorable Court,
the accused VICENTE C. RIVERA, JR., Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in
relation to his office and taking advantage of the same, in conspiracy with
accused HENRY T. GO, Chairman and President of the Philippine
International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully,
unlawfully and feloniously enter into an Amended and Restated Concession
Agreement (ARCA), after the project for the construction of the Ninoy Aquino
International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo
Consortium/PIATCO, which ARCA substantially amended the draft
Concession Agreement covering the construction of the NAIA IPT III under
Republic Act 6957 as amended by Republic Act 7718 (BOT Law) providing
that the government shall assume the liabilities of PIATCO in the event of the
latter’s default specifically Article IV, Section 4.04 (c) in relation to Article I,
Section 1.06 of the ARCA which term is more beneficial to PIATCO and in
violation of the BOT law, and manifestly and grossly disadvantageous to the
government of the Republic of the Philippines.
CONTRARY TO LAW.5
On February 11, 2005, petitioner Go posted a cash bond for his provisional
liberty.
On February 15, 2005, the Sandiganbayan issued a Hold Departure Order
against Rivera and petitioner Go.
On March 28, 2005, petitioner Go was arraigned and entered a plea of "not
guilty."
24
On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-
Determination) of Probable Cause and Motion to Dismiss. The Sandiganbayan
gave petitioner Go a period of ten (10) days within which to file a comment
thereon.
On June 20, 2005, petitioner Go filed his Comment with Motion to Quash.
Adopting the view advanced by Rivera, petitioner Go harped on the alleged
"missing documents," including Pesayco’s amended affidavit-complaint and
those others that were mentioned in the resolution of the Office of the Deputy
Ombudsman finding probable cause against Rivera and petitioner Go, but
which were not allegedly in the records. Petitioner Go maintained that apart
from the bare allegations contained in Pesayco’s affidavit-complaint, there was
no supporting evidence for the finding of the existence of probable cause
against him and Rivera. Petitioner Go further alleged that he could not be
charged under Section 3(g) of RA 3019 because he is not a public officer and
neither is he capacitated to enter into a contract or transaction on behalf of the
government. At least one of the important elements of the crime under Section
3(g) of RA 3019 is not allegedly present in his case.
On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute
the Comment with Motion to Quash, which the prosecution, through the Office
of the Ombudsman, opposed.
On December 6, 2005, the Sandiganbayan issued the assailed Resolution
denying Rivera’s Motion for Judicial Determination (Re-Determination) of
Probable Cause and Motion to Dismiss and petitioner Go’s Motion to Quash.
The Sandiganbayan ruled that, contrary to the prosecution’s submission, it
could still entertain petitioner Go’s Motion to Quash even after his arraignment
considering that it was based on the ground that the facts charged do not
constitute an offense. Nonetheless, the Sandiganbayan denied petitioner Go’s
Motion to Quash holding that, contrary to his claim, the allegations in the
Information actually make out the offense charged. More particularly, the
allegations that accused Rivera, as DOTC Secretary, in conspiracy with
petitioner Go, entered into the ARCA with petitioner Go/PIATCO, which
agreement was manifestly and grossly disadvantageous to the government,
are constitutive of the elements of the offense charged as defined under
Section 3(g) of RA 3019.
The Sandiganbayan explained that petitioner Go’s contentions that he is not a
public officer, he did not conspire with Rivera in the execution of the ARCA
and, in any case, the said agreement cannot be said to be manifestly and
grossly disadvantageous to the government, could not be properly considered
for the purpose of quashing the Information on the ground relied upon by him.
According to the Sandiganbayan, these matters raised by petitioner Go have
to be proved during trial.
The decretal portion of the assailed Sandiganbayan Resolution reads:
WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-
Determination) of Probable Cause and Motion to Dismiss" and the "Motion to
Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go, respectively,
are hereby DENIED.
SO ORDERED.6
Petitioner Go filed a motion for reconsideration thereof but it was denied by
the Sandiganbayan in the Resolution dated March 24, 2006.
Petitioner Go now seeks recourse to the Court and, in support of his petitioner,
alleges that:
A.
The Honorable Sandiganbayan committed grave abuse of discretion
amounting to lack or excess of jurisdiction in not ruling that Section 3(g) does
not embrace a private person within its proviso.
B.
The Honorable Sandiganbayan committed grave abuse of discretion
amounting to lack or excess of jurisdiction in not ruling that there is no probable
cause to hold petitioner for trial.7
Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be
extended or even enlarged by implication or intendment to bring within its
limited scope private persons. The said provision of law allegedly punishes
only public officers as it penalizes the act of "entering, on behalf of the
government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will
profit thereby." As a private person, he could not allegedly enter into a contract
"on behalf of the government," there being no showing of any agency relations
or special authority for him to act for and on behalf of the government.
Citing several cases,8 petitioner Go enumerates the following elements of
Section 3(g) of RA 3019:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government;
and
(3) that such contract or transaction is grossly and manifestly disadvantageous
to the government.
He also cites Marcos v. Sandiganbayan9 where the Court acquitted then First
Lady Imelda R. Marcos of the charge of violation of Section 3(g) of RA 3019
as it found that she did not sign the subject Lease Agreement, entered into
between the Light Railway Transit Authority (LRTA) and Philippine General
Hospital Foundation, Inc. (PGHFI), as a public officer, but in her capacity as
Chairman of the PGHFI, a private entity. As such, the Court held that the first
element of the offense charged, i.e., that the accused is a public officer, was
wanting.
Petitioner Go claims that, in the same manner, the first element of the offense
charged against him is absent because he is not a public officer who is
authorized by law to bind the government through the act of "entering into a
contract." He also points out that, similar to his case, in Marcos, the Information
also alleged that the former First Lady conspired with a public officer, then
25
Minister Jose P. Dans of the Ministry of Transportation and Communications,
in entering into a contract. Nonetheless, the Court therein dismissed the
allegation of conspiracy.
Petitioner Go maintains that by any of its definition,10 he cannot be considered
a "public officer." Further, only a public officer can enter into a
contract in representation of the government. He stresses that the first element
of the offense, i.e., that the accused is a public officer, is an essential ingredient
of the crime under Section 3(g) of RA 3019. He likens it to the crime of parricide
where the essential element is the relationship of the offender to the victim
and, citing a criminal law book author, a stranger who cooperates in the
execution of the offense is not allegedly guilty of this crime. The stranger is
allegedly either liable for homicide or murder but never by "conspiracy to
commit parricide."11
By parity of reasoning, according to petitioner Go, the first essential element
of the crime penalized under Section 3(g) of RA 3019 is that the offender must
be a public officer. Since he is not a public officer, one of the essential
elements of the offense is lacking; hence, there is no other recourse but to
quash the Information.
Section 9 of RA 3019 was also cited which reads:
SEC. 9. Penalties for violation. –
(a) Any public officer or private person committing any of the unlawful acts or
omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished
with imprisonment for not less than six years and one month or fifteen years,
perpetual disqualification from public office, and confiscation or forfeiture in
favor of the Government of any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other lawful income.
xxx
Petitioner Go posits that had it been the intention of the lawmakers to penalize
private persons who supposedly "conspired" with public officers in violation of
Sections 3, 4, 5 and 6 of RA 3019, it could have easily used the conjunctive
"and," not "or," between the terms "public officer" and "private person" in
Section 9 thereof.
Petitioner Go takes exception to the Sandiganbayan’s pronouncement that
even as a private individual he is not excluded from the coverage of Section
3(g) of RA 3019 because he is not being accused singly but as someone who
conspired with a public officer in violating the said law. According to petitioner
Go, this proposition applies only to Section 3(e)12 of RA 3019, the elements of
which include that "the accused are public officers or private persons charged
in conspiracy with them."13 He stresses that, unlike Section 3(e) of RA 3019,
Section 3(g) thereof penalizes only public officers as the operative phrase in
the latter provision is "on behalf of the government."
Petitioner Go vigorously asserts that there is no basis for the finding of
probable cause against him for violation of Section 3(g) of RA 3019. In
particular, he insists that the allegation of conspiracy between Rivera and
himself is not supported by any evidence. He makes an issue out of those
documents that were mentioned in the resolution of the Deputy Ombudsman
finding probable cause against him but were not in the records of the
Sandiganbayan. His mere signing of the ARCA does not allegedly establish
culpability for violation of RA 3019. Further, he faults the Sandiganbayan for
invoking the doctrine of non-interference by the courts in the determination by
the Ombudsman of the existence of probable cause. It is petitioner Go’s view
that the Sandiganbayan should have ordered the quashal of the Information
for palpable want of probable cause coupled with the absence of material
documents.
The petition is bereft of merit.
For clarity, Section 3(g) of RA 3019 is quoted below anew:
SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxx
(g) Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.
As earlier mentioned, the elements of this offense are as follows:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government;
and
(3) that such contract or transaction is grossly and manifestly disadvantageous
to the government.14
Contrary to the contention of petitioner Go, however, the fact that he is not a
public officer does not necessarily take him out of the ambit of Section 3(g) of
RA 3019. Petitioner Go’s simplistic syllogism, i.e., he is not a public officer ergo
he cannot be charged with violation of Section 3(g) of RA 3019, goes against
the letter and spirit of the avowed policy of RA 3019 as embodied in Section 1
thereof:
SEC. 1. Statement of policy. - It is the policy of the Philippine Government, in
line with the principle that a public office is a public trust, to repress certain
acts of public officers and private persons alike which constitute graft or corrupt
practices or which may lead thereto.
As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v.
Estrella,15 the Court had ascertained the scope of Section 3(g) of RA 3019 as
applying to both public officers and private persons:
x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019]
partakes the nature of malum prohibitum; it is the commission of that act as
defined by law, not the character or effect thereof, that determines whether or
not the provision has been violated. And this construction would be in
consonance with the announced purpose for which Republic Act 3019 was
26
enacted, which is the repression of certain acts of public officers and private
persons constituting graft or corrupt practices act or which may lead thereto.16
Like in the present case, the Information in the said case charged both public
officers and private persons with violation of Section 3(g) of RA 3019.
Section 9 of RA 3019 buttresses the conclusion that the anti-graft law’s
application extends to both public officers and private persons. The said
provision, quoted earlier, provides in part that:
SEC. 9. (a) Any public officer or private person committing any of the unlawful
acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be
punished with imprisonment for not less than six years and one month nor
more than fifteen years, perpetual disqualification from public office, and
confiscation or forfeiture in favor of the Government of any prohibited interest
and unexplained wealth manifestly out of proportion to his salary and other
lawful income.
xxx
The fact that one of the elements of Section 3(g) of RA 3019 is "that the
accused is a public officer" does not necessarily preclude its application to
private persons who, like petitioner Go, are being charged with conspiring with
public officers in the commission of the offense thereunder.
The case of Singian, Jr. v. Sandiganbayan17 is instructive. In the said case,
Gregorio Singian, Jr., a private person who was then Executive Vice-President
of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine
National Bank (PNB), was charged with violation of Section 3(e) and (g) of RA
3019 in connection with the loan accommodations that the said bank extended
to ISI which were characterized as behest loans.
A total of eighteen Informations were filed against Singian and his co-accused
by the Office of the Ombudsman before the Sandiganbayan corresponding to
the nine loan accommodations granted to ISI. Each loan was subject of two
Informations alleging violations of both Section 3(e) and (g), respectively. In
other words, nine Informations charged Singian and his co-accused with
violation of Section 3(e) of RA 3019 and the other nine charged them with
violation of paragraph (g) of the same provision.
Singian filed with the Sandiganbayan a motion for re-determination of
existence of probable cause but the same was dismissed. He then filed with
the Court a petition for certiorari but it was likewise dismissed as the Court
held that the Ombudsman and the Sandiganbayan had not committed grave
abuse of discretion when they respectively found probable cause against
Singian for violations of both paragraphs (e) and (g) of Section 3 of RA 3019.
Singian thus illustrates that private persons, like petitioner Go, when
conspiring with public officers, may be indicted and, if found guilty, held liable
for violation of Section 3(g) of RA 3019. Another case, Domingo v.
Sandiganbayan,18may likewise be applied to this case by analogy.
In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply,
together with Jaime Domingo, then municipal mayor of San Manuel, Isabela, was
charged with Section 3(h) of RA 3019 as it appeared that he was used by Domingo as
a dummy to cover up his business transaction with the municipality. Section 3(h) of the
anti-graft law reads:
SEC.3. Corrupt practices of public officers. – x x x
(h) Directly or indirectly having financial or pecuniary interest in any business, contract
or transaction in connection with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution or by any law from having an
interest.
The elements of this offense are: (1) that the accused is a public officer; (2) he has a
direct or indirect financial or pecuniary interest in any business, contract, or transaction;
(3) he either: (a) intervenes or takes part in his official capacity in connection with such
interest, or (b) is prohibited from having such interest by the Constitution or by law. 19
Despite the first element mentioned above, the Court affirmed the conviction of Garcia,
a private individual, as well as that of Domingo, who was then a municipal mayor, for
violation of Section 3(h) of RA 3019. In so holding, the Court established that Domingo
and Garcia acted in conspiracy with one another in the commission of the offense.
Domingo thus also serves to debunk petitioner Go’s theory that where an offense has
as one of its elements that the accused is a public officer, it necessarily excludes private
persons from the scope of such offense.
The precept that could be drawn from Luciano, Singian and Domingo, and which is
applicable to the present case, is that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty, held liable for the pertinent offenses
under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with
the avowed policy of the anti-graft law to repress certain acts of public officers and
private persons alike constituting graft or corrupt practices act or which may lead
thereto.
Reliance by petitioner Go on Marcos v. Sandiganbayan 20 is not quite appropriate. To
recall, upon her motion for reconsideration, the Court therein acquitted former First
Lady Imelda Marcos of the charge of violation of Section 3(g) of RA 3019 in its
Resolution dated October 6, 1998. Her acquittal was based on the finding that she
signed the subject lease agreement as a private person, not as a public officer. As
such, the first element, i.e., that the accused is a public officer was wanting.
Petitioner Go, however, failed to put the Court’s ruling in Marcos in its proper factual
backdrop. The acquittal of the former First Lady should be taken in the context of the
Court’s Decision dated January 29, 1998, in Dans, Jr. v. People, 21 which the former
First Lady sought to reconsider and, finding merit in her motion, gave rise to the Court’s
Resolution in Marcos. In Dans, the Information filed against the former First Lady and
Jose P. Dans, Jr., then Minister of Transportation and Communications, for violation of
Section 3(g) of RA 3019, alleged that they were both public officers and, conspiring
with each other, entered into the subject lease agreement covering the LRTA property
with the PGHFI, a private entity, under terms and conditions manifestly and grossly
disadvantageous to the government.
The Court in its original decision affirmed the former First Lady’s conviction for violation
of Section 3(g) of RA 3019 but acquitted her co-accused, Dans, Jr., of the said offense.
As stated earlier, upon the former First Lady’s motion for reconsideration, the Court
reversed her conviction in its Resolution in Marcos.
It can be gleaned from the entire context of Marcos and Dans that the reversal of the
former First Lady’s conviction was based on the fact that it was later held that she
signed the subject lease agreement as a private person, not a public officer. However,
27
this acquittal should also be taken in conjunction with the fact that the public officer with the offense, and specify its qualifying and aggravating circumstances. If there is no
whom she had supposedly conspired, her co-accused Dans, had earlier been designation of the offense, reference shall be made to the section or subsection of the
acquitted. In other words, the element that the accused is a public officer, was totally statute punishing it.
wanting in the former First Lady’s case because Dans, the public officer with whom she An accused, like petitioner Go, may file a motion to quash the Information under Section
had allegedly conspired in committing Section 3(g) of RA 3019, had already been 3(a) of Rule 117 on the grounds that the facts charged do not constitute an offense. In
acquitted. Obviously, the former First Lady could not be convicted, on her own as a such a case, the fundamental test in determining the sufficiency of the material
private person, of the said offense. averments of an Information is whether or not the facts alleged therein, which are
In contrast, petitioner Go cannot rightfully assert the total absence of the first element hypothetically admitted, would establish the essential elements of the crime defined by
in his case because he is not being charged alone but in conspiracy with Rivera, law. Evidence aliunde or matters extrinsic of the Information are not to be considered.26
undoubtedly a public officer by virtue of his then being the DOTC Secretary. The case As correctly outlined by the Office of the Ombudsman, the facts alleged in the
against both of them is still pending before the Sandiganbayan. The facts attendant in Information, if admitted hypothetically, establish all the elements of Section 3(g) of RA
petitioner Go’s case are, therefore, not exactly on all fours as those of the former First 3019 vis-à-vis petitioner Go:
Lady’s case as to warrant the application of the Marcos ruling in his case. ELEMENTS ALLEGATIONS
Anent the allegation of conspiracy, it is posited by the dissenting opinion that the 1a\^/phi1.net
Information is infirm as far as petitioner Go is concerned because it failed to mention
1. The offender is a public [T]he accused VICENTE C.
with specificity his participation in the planning and preparation of the alleged
officer RIVERA, JR., Secretary of
conspiracy. It opines that "aside from the sweeping allegation of conspiracy, the
Department of Transportation and
Information failed to mention any act as to how petitioner had taken part in the planning
Communications (DOTC),
and preparation of the alleged conspiracy. Mere allegation of conspiracy in the
committing the offense in relation
Information does not necessarily mean that the criminal acts recited therein also pertain
to his office and taking advantage
to petitioner." While it concedes that the Sandiganbayan may exercise jurisdiction over
of the same, in conspiracy with
private individuals, it submits that it may do so only "upon Information alleging with
accused HENRY T. GO,
specificity the precise violations of the private individual." By way of conclusion, the
Chairman and President of
dissenting opinion cites Sistoza v. Desierto 22 where the Court stated that a signature
Philippine International Air
appearing on a document is not enough to sustain a finding of conspiracy among
Terminals, Co., xxx"
officials and employees charged with defrauding the government.
These asseverations, however, are unpersuasive. It is well established that the 2. He entered into a contract or "[T]he accused VICENTE C.
presence or absence of the elements of the crime is evidentiary in nature and is a transaction in behalf of the RIVERA, JR., xxx in conspiracy
matter of defense that may be passed upon after a full-blown trial on the merits.23 In government with accused HENRY T. GO xxx
the same manner, the absence (or presence) of any conspiracy among the accused is did then and there, willfully &
evidentiary in nature and is a matter of defense, the truth of which can be best passed unlawfully and feloniously entered
upon after a full-blown trial on the merits.24 into an Amended and Restated
Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with Concession Agreement (ARCA),
Rivera in violating Section 3(g) of RA 3019 as well as the details on how petitioner Go after the project for the
had taken part in the planning and preparation of the alleged conspiracy need not be construction of the Ninoy Aquino
set forth in the Information as these are evidentiary matters and, as such, are to be International Airport International
shown and proved during the trial on the merits. Indeed, it bears stressing that "[t]o Passenger Terminal III (NAIA IPT
establish conspiracy, direct proof of an agreement concerning the commission of a III) was awarded to Paircargo
felony and the decision to commit it is not necessary. It may be inferred from the acts Consortium/PIATCO x x x
of the accused before, during or after the commission of the crime which, when taken
together, would be enough to reveal a community of criminal design, as the proof of 3. The contract or transaction "xxx which ARCA substantially
conspiracy is frequently made by evidence of a chain of circumstances. Once is grossly and manifestly amended the draft Concession
established, all the conspirators are criminally liable as co-principals regardless of the disadvantageous to the Agreement covering the
degree of participation of each of them, for in contemplation of the law the act of one is government construction of the NAIA IPT III
the act of all."25 under Republic Act 6957, as
In this connection, for purposes of the Information, it is sufficient that the requirements amended by Republic Act 7718
of Section 8, Rule 110 of the Rules of Court are complied with: (BOT Law) providing that the
SEC. 8. Designation of the offense. – The complaint or information shall state the government shall assume the
designation of the offense given by the statute, aver the acts or omissions constituting

28
 be imputed on the Sandiganbayan when it held that there exists probable cause against
liabilities of PIATCO in the event
petitioner Go.
of the latter’s default specifically
ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions
Article IV, Section 4.04 (c) in
dated December 6, 2005 and March 24, 2006 of the Sandiganbayan in Criminal Case
relation to Article I, Section 1.06 of
No. 28092 are AFFIRMED in toto.
the ARCA which terms are more
beneficial to PIATCO and in SO ORDERED.
violation of the BOT Law and
manifestly grossly
disadvantageous to the
government of the Republic of the
Philippines."27
Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan
ratiocinated thus:
The rule is that the determination of probable cause during the preliminary investigation
is a function that belongs to the public prosecutor, the Office of the Ombudsman in this
case. Such official is vested with authority to determine whether or not a criminal case
must be filed in court and the concomitant function of determining as well the persons
to be prosecuted. Also, it must not be lost sight of that the correctness of the exercise
of such function is a matter that the trial court itself does not and may not be compelled
to pass upon, consistent with the policy of non-interference by the courts in the
determination by the Ombudsman of the existence of probable cause.
Accordingly, upon the foregoing premises, we believe and so hold that any and all
questions relating to the finding of probable cause by the Office of the Ombudsman
should be addressed to the said office itself, then to the Court of Appeals and,
ultimately, to the Supreme Court.
On the matter of the judicial determination of probable cause, we stand by our finding
that the same exists in this case, the said finding we arrived at upon a personal
determination thereof which we did for the purpose of and before the issuance of the
warrant of arrest.1awphi1.nét While it may indeed be true that the documents
mentioned by accused-movant as being absent in the records are missing, we
nevertheless had for our perusal other documents assiduously listed down by accused
Rivera in his motion, including the information, which we found to constitute sufficient
basis for our determination of the existence of probable cause. It must be emphasized
that such determination is separate and distinct from that made by the Office of the
Ombudsman and which we did independently therefrom.28
The determination of probable cause during a preliminary investigation is a function of
the government prosecutor, which in this case is the Ombudsman. As a rule, courts do
not interfere in the Ombudsman’s exercise of discretion in determining probable cause,
unless there are compelling reasons.29 Mindful of this salutary rule, the Sandiganbayan
nonetheless made its own determination on the basis of the records that were before
it. It concluded that there was sufficient evidence in the records for the finding of the
existence of probable cause against petitioner Go.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment
tantamount to lack or excess of jurisdiction. The exercise of power must have been
done in an arbitrary or a despotic manner by reason of passion or personal hostility. It
must have been so patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform the duty enjoined or to act at all in contemplation of
law.30 Clearly, in the light of the foregoing disquisition, grave abuse of discretion cannot

29
G.R. No. 168539 March 25, 2014
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
HENRY T. GO, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari assailing the Resolution1
of the Third Division2 of the Sandiganbayan (SB) dated June 2, 2005 which
quashed the Information filed against herein respondent for alleged violation
of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise known as the
Anti-Graft and Corrupt Practices Act.
The Information filed against respondent is an offshoot of this Court's
Decision3 in Agan, Jr. v. Philippine International Air Terminals Co., Inc. which
nullified the various contracts awarded by the Government, through the
Department of Transportation and Communications (DOTC), to Philippine Air
Terminals, Co., Inc. (PIATCO) for the construction, operation and maintenance
of the Ninoy Aquino International Airport International Passenger Terminal III
(NAIA IPT III). Subsequent to the above Decision, a certain Ma. Cecilia L.
Pesayco filed a complaint with the Office of the Ombudsman against several
individuals for alleged violation of R.A. 3019. Among those charged was herein
respondent, who was then the Chairman and President of PIATCO, for having
supposedly conspired with then DOTC Secretary Arturo Enrile (Secretary
Enrile) in entering into a contract which is grossly and manifestly
disadvantageous to the government.
On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found
probable cause to indict, among others, herein respondent for violation of
Section 3(g) of R.A. 3019. While there was likewise a finding of probable cause
against Secretary Enrile, he was no longer indicted because he died prior to
the issuance of the resolution finding probable cause.
Thus, in an Information dated January 13, 2005, respondent was charged
before the SB as follows:
On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay
City, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the late ARTURO ENRILE, then Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in
relation to his office and taking advantage of the same, in conspiracy with
accused, HENRY T. GO, Chairman and President of the Philippine
International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully,
unlawfully and criminally enter into a Concession Agreement, after the project
for the construction of the Ninoy Aquino International Airport International
Passenger Terminal III (NAIA IPT III) was awarded to Paircargo
Consortium/PIATCO, which Concession Agreement substantially amended
the draft Concession Agreement covering the construction of the NAIA IPT III
under Republic Act 6957, as amended by Republic Act 7718 (BOT law),
specifically the provision on Public Utility Revenues, as well as the assumption
by the government of the liabilities of PIATCO in the event of the latter's default
under Article IV, Section 4.04 (b) and (c) in relation to Article 1.06 of the
Concession Agreement, which terms are more beneficial to PIATCO while
manifestly and grossly disadvantageous to the government of the Republic of
the Philippines.4
The case was docketed as Criminal Case No. 28090.
On March 10, 2005, the SB issued an Order, to wit:
The prosecution is given a period of ten (10) days from today within which to
show cause why this case should not be dismissed for lack of jurisdiction over
the person of the accused considering that the accused is a private person
and the public official Arturo Enrile, his alleged co-conspirator, is already
deceased, and not an accused in this case.5
The prosecution complied with the above Order contending that the SB has
already acquired jurisdiction over the person of respondent by reason of his
voluntary appearance, when he filed a motion for consolidation and when he
posted bail. The prosecution also argued that the SB has exclusive jurisdiction
over respondent's case, even if he is a private person, because he was alleged
to have conspired with a public officer.6
On April 28, 2005, respondent filed a Motion to Quash7 the Information filed
against him on the ground that the operative facts adduced therein do not
constitute an offense under Section 3(g) of R.A. 3019. Respondent, citing the
show cause order of the SB, also contended that, independently of the
deceased Secretary Enrile, the public officer with whom he was alleged to
have conspired, respondent, who is not a public officer nor was capacitated by
any official authority as a government agent, may not be prosecuted for
violation of Section 3(g) of R.A. 3019.
The prosecution filed its Opposition.8
30
On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of
which read thus:
Acting on the Motion to Quash filed by accused Henry T. Go dated April 22,
2005, and it appearing that Henry T. Go, the lone accused in this case is a
private person and his alleged co-conspirator-public official was already
deceased long before this case was filed in court, for lack of jurisdiction over
the person of the accused, the Court grants the Motion to Quash and the
Information filed in this case is hereby ordered quashed and dismissed.9
Hence, the instant petition raising the following issues, to wit:
I
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED
A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW
OR APPLICABLE JURISPRUDENCE IN GRANTING THE DEMURRER TO
EVIDENCE AND IN DISMISSING CRIMINAL CASE NO. 28090 ON THE
GROUND THAT IT HAS NO JURISDICTION OVER THE PERSON OF
RESPONDENT GO.
II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED
A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW
OR APPLICABLE JURISPRUDENCE, IN RULING THAT IT HAS NO
JURISDICTION OVER THE PERSON OF RESPONDENT GO DESPITE THE
IRREFUTABLE FACT THAT HE HAS ALREADY POSTED BAIL FOR HIS
PROVISIONAL LIBERTY
III
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN
COMPLETE DISREGARD OF THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION, IT QUASHED THE INFORMATION AND DISMISSED
CRIMINAL CASE NO. 2809010
The Court finds the petition meritorious.
Section 3 (g) of R.A. 3019 provides:
Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxxx
(g) Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.
The elements of the above provision are:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the government;
and
(3) that such contract or transaction is grossly and manifestly disadvantageous
to the government.11
At the outset, it bears to reiterate the settled rule that private persons, when
acting in conspiracy with public officers, may be indicted and, if found guilty,
held liable for the pertinent offenses under Section 3 of R.A. 3019, in
consonance with the avowed policy of the anti-graft law to repress certain acts
of public officers and private persons alike constituting graft or corrupt
practices act or which may lead thereto.12 This is the controlling doctrine as
enunciated by this Court in previous cases, among which is a case involving
herein private respondent.13
The only question that needs to be settled in the present petition is whether
herein respondent, a private person, may be indicted for conspiracy in violating
Section 3(g) of R.A. 3019 even if the public officer, with whom he was alleged
to have conspired, has died prior to the filing of the Information.
Respondent contends that by reason of the death of Secretary Enrile, there is
no public officer who was charged in the Information and, as such, prosecution
against respondent may not prosper.
The Court is not persuaded.
It is true that by reason of Secretary Enrile's death, there is no longer any
public officer with whom respondent can be charged for violation of R.A. 3019.
It does not mean, however, that the allegation of conspiracy between them can
no longer be proved or that their alleged conspiracy is already expunged. The
only thing extinguished by the death of Secretary Enrile is his criminal liability.
31
His death did not extinguish the crime nor did it remove the basis of the charge
of conspiracy between him and private respondent. Stated differently, the
death of Secretary Enrile does not mean that there was no public officer who
allegedly violated Section 3 (g) of R.A. 3019. In fact, the Office of the Deputy
Ombudsman for Luzon found probable cause to indict Secretary Enrile for
infringement of Sections 3 (e) and (g) of R.A. 3019.14 Were it not for his death,
he should have been charged.
The requirement before a private person may be indicted for violation of
Section 3(g) of R.A. 3019, among others, is that such private person must be
alleged to have acted in conspiracy with a public officer. The law, however,
does not require that such person must, in all instances, be indicted together
with the public officer. If circumstances exist where the public officer may no
longer be charged in court, as in the present case where the public officer has
already died, the private person may be indicted alone.
Indeed, it is not necessary to join all alleged co-conspirators in an indictment
for conspiracy.15 If two or more persons enter into a conspiracy, any act done
by any of them pursuant to the agreement is, in contemplation of law, the act
of each of them and they are jointly responsible therefor.16 This means that
everything said, written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been said, done, or
written by each of them and it makes no difference whether the actual actor is
alive or dead, sane or insane at the time of trial.17 The death of one of two or
more conspirators does not prevent the conviction of the survivor or
survivors.18 Thus, this Court held that:
x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire
alone. The crime depends upon the joint act or intent of two or more persons.
Yet, it does not follow that one person cannot be convicted of conspiracy. So
long as the acquittal or death of a co-conspirator does not remove the bases
of a charge for conspiracy, one defendant may be found guilty of the
offense.19
The Court agrees with petitioner's contention that, as alleged in the Information
filed against respondent, which is deemed hypothetically admitted in the
latter's Motion to Quash, he (respondent) conspired with Secretary Enrile in
violating Section 3 (g) of R.A. 3019 and that in conspiracy, the act of one is the
act of all. Hence, the criminal liability incurred by a co-conspirator is also
incurred by the other co-conspirators.
Moreover, the Court agrees with petitioner that the avowed policy of the State
and the legislative intent to repress "acts of public officers and private persons
alike, which constitute graft or corrupt practices,"20 would be frustrated if the
death of a public officer would bar the prosecution of a private person who
conspired with such public officer in violating the Anti-Graft Law.
In this regard, this Court's disquisition in the early case of People v. Peralta21
as to the nature of and the principles governing conspiracy, as construed under
Philippine jurisdiction, is instructive, to wit:
x x x A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Generally,
conspiracy is not a crime except when the law specifically provides a penalty
therefor as in treason, rebellion and sedition. The crime of conspiracy known
to the common law is not an indictable offense in the Philippines. An
agreement to commit a crime is a reprehensible act from the view-point of
morality, but as long as the conspirators do not perform overt acts in
furtherance of their malevolent design, the sovereignty of the State is not
outraged and the tranquility of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a conspiracy assumes
pivotal importance in the determination of the liability of the perpetrators. In
stressing the significance of conspiracy in criminal law, this Court in U.S. vs.
Infante and Barreto opined that
While it is true that the penalties cannot be imposed for the mere act of
conspiring to commit a crime unless the statute specifically prescribes a
penalty therefor, nevertheless the existence of a conspiracy to commit a crime
is in many cases a fact of vital importance, when considered together with the
other evidence of record, in establishing the existence, of the consummated
crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are
liable as co-principals regardless of the extent and character of their respective
active participation in the commission of the crime or crimes perpetrated in
furtherance of the conspiracy because in contemplation of law the act of one
is the act of all. The foregoing rule is anchored on the sound principle that
"when two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively,
each individual whose evil will actively contributes to the wrong-doing is in law
responsible for the whole, the same as though performed by himself alone."
Although it is axiomatic that no one is liable for acts other than his own, "when
two or more persons agree or conspire to commit a crime, each is responsible
for all the acts of the others, done in furtherance of the agreement or
conspiracy." The imposition of collective liability upon the conspirators is
clearly explained in one case where this Court held that x x x it is impossible
32
to graduate the separate liability of each (conspirator) without taking into
consideration the close and inseparable relation of each of them with the
criminal act, for the commission of which they all acted by common agreement
x x x. The crime must therefore in view of the solidarity of the act and intent
which existed between the x x x accused, be regarded as the act of the band
or party created by them, and they are all equally responsible x x x
Verily, the moment it is established that the malefactors conspired and
confederated in the commission of the felony proved, collective liability of the
accused conspirators attaches by reason of the conspiracy, and the court shall
not speculate nor even investigate as to the actual degree of participation of
each of the perpetrators present at the scene of the crime. Of course, as to
any conspirator who was remote from the situs of aggression, he could be
drawn within the enveloping ambit of the conspiracy if it be proved that through
his moral ascendancy over the rest of the conspirators the latter were moved
or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and
execution of the crime amply justifies the imputation to all of them the act of
any one of them. It is in this light that conspiracy is generally viewed not as a
separate indictable offense, but a rule for collectivizing criminal liability.
xxxx
x x x A time-honored rule in the corpus of our jurisprudence is that once
conspiracy is proved, all of the conspirators who acted in furtherance of the
common design are liable as co-principals. This rule of collective criminal
liability emanates from the ensnaring nature of conspiracy. The concerted
action of the conspirators in consummating their common purpose is a patent
display of their evil partnership, and for the consequences of such criminal
enterprise they must be held solidarily liable.22
This is not to say, however, that private respondent should be found guilty of
conspiring with Secretary Enrile. It is settled that the absence or presence of
conspiracy is factual in nature and involves evidentiary matters.23 Hence, the
allegation of conspiracy against respondent is better left ventilated before the
trial court during trial, where respondent can adduce evidence to prove or
disprove its presence.
Respondent claims in his Manifestation and Motion24 as well as in his Urgent
Motion to Resolve25 that in a different case, he was likewise indicted before
the SB for conspiracy with the late Secretary Enrile in violating the same
Section 3 (g) of R.A. 3019 by allegedly entering into another agreement (Side
Agreement) which is separate from the Concession Agreement subject of the
present case. The case was docketed as Criminal Case No. 28091. Here, the
SB, through a Resolution, granted respondent's motion to quash the
Information on the ground that the SB has no jurisdiction over the person of
respondent. The prosecution questioned the said SB Resolution before this
Court via a petition for review on certiorari. The petition was docketed as G.R.
No. 168919. In a minute resolution dated August 31, 2005, this Court denied
the petition finding no reversible error on the part of the SB. This Resolution
became final and executory on January 11, 2006. Respondent now argues
that this Court's resolution in G.R. No. 168919 should be applied in the instant
case.
The Court does not agree. Respondent should be reminded that prior to this
Court's ruling in G.R. No. 168919, he already posted bail for his provisional
liberty. In fact, he even filed a Motion for Consolidation26 in Criminal Case No.
28091. The Court agrees with petitioner's contention that private respondent's
act of posting bail and filing his Motion for Consolidation vests the SB with
jurisdiction over his person. The rule is well settled that the act of an accused
in posting bail or in filing motions seeking affirmative relief is tantamount to
submission of his person to the jurisdiction of the court.27
Thus, it has been held that:
When a defendant in a criminal case is brought before a competent court by
virtue of a warrant of arrest or otherwise, in order to avoid the submission of
his body to the jurisdiction of the court he must raise the question of the court’s
jurisdiction over his person at the very earliest opportunity. If he gives bail,
demurs to the complaint or files any dilatory plea or pleads to the merits, he
thereby gives the court jurisdiction over his person. (State ex rel. John Brown
vs. Fitzgerald, 51 Minn., 534)
xxxx
As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:
"[L]ack of jurisdiction over the person of the defendant may be waived either
expressly or impliedly. When a defendant voluntarily appears, he is deemed
to have submitted himself to the jurisdiction of the court. If he so wishes not to
waive this defense, he must do so seasonably by motion for the purpose of
objecting to the jurisdiction of the court; otherwise, he shall be deemed to have
submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of objecting
to the jurisdiction of the court over the person, it must be for the sole and
separate purpose of objecting to said jurisdiction. If the appearance is for any
33
other purpose, the defendant is deemed to have submitted himself to the is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith
jurisdiction of the court. Such an appearance gives the court jurisdiction over DIRECTED to proceed with deliberate dispatch in the disposition of Criminal
the person." Case No. 28090.

Verily, petitioner’s participation in the proceedings before the Sandiganbayan SO ORDERED.

was not confined to his opposition to the issuance of a warrant of arrest but
also covered other matters which called for respondent court’s exercise of its
jurisdiction. Petitioner may not be heard now to deny said court’s jurisdiction
over him. x x x.28

In the instant case, respondent did not make any special appearance to
question the jurisdiction of the SB over his person prior to his posting of bail
and filing his Motion for Consolidation. In fact, his Motion to Quash the
Information in Criminal Case No. 28090 only came after the SB issued an
Order requiring the prosecution to show cause why the case should not be
dismissed for lack of jurisdiction over his person.

As a recapitulation, it would not be amiss to point out that the instant case
involves a contract entered into by public officers representing the
government. More importantly, the SB is a special criminal court which has
exclusive original jurisdiction in all cases involving violations of R.A. 3019
committed by certain public officers, as enumerated in P.D. 1606 as amended
by R.A. 8249. This includes private individuals who are charged as co-
principals, accomplices or accessories with the said public officers. In the
instant case, respondent is being charged for violation of Section 3(g) of R.A.
3019, in conspiracy with then Secretary Enrile. Ideally, under the law, both
respondent and Secretary Enrile should have been charged before and tried
jointly by the Sandiganbayan. However, by reason of the death of the latter,
this can no longer be done. Nonetheless, for reasons already discussed, it
does not follow that the SB is already divested of its jurisdiction over the person
of and the case involving herein respondent. To rule otherwise would mean
that the power of a court to decide a case would no longer be based on the
law defining its jurisdiction but on other factors, such as the death of one of the
alleged offenders.

Lastly, the issues raised in the present petition involve matters which are mere
incidents in the main case and the main case has already been pending for
over nine (9) years. Thus, a referral of the case to the Regional Trial Court
would further delay the resolution of the main case and it would, by no means,
promote respondent's right to a speedy trial and a speedy disposition of his
case.

WHEREFORE, the petition is GRANTED. The Resolution of the

Sandiganbayan dated June 2, 2005, granting respondent's Motion to Quash,
34
 On June 7, 1995, Republic Act (R.A.) No. 8047, [5] or otherwise known as the
G.R. Nos. 147026-27 Book Publishing Industry Development Act, was enacted into law. Foremost in
its policy is the State's goal in promoting the continuing development of the
Present: book publishing industry, through the active participation of the private sector,
YNARES-SANTIAGO, J., to ensure an adequate supply of affordable, quality-produced books for the
Chairperson, domestic and export market.
CHICO-NAZARIO,
VELASCO, JR., To achieve this purpose, the law provided for the creation of the National Book
NACHURA, and Development Board (NBDB or the Governing Board, for brevity), which shall
CAROLINA R. JAVIER, PERALTA, JJ. be under the administration and supervision of the Office of the President. The
Petitioner, Governing Board shall be composed of eleven (11) members who shall be
Promulgated: appointed by the President of the Philippines, five (5) of whom shall come from
September 11, 2009 the government, while the remaining six (6) shall be chosen from the nominees
- versus - of organizations of private book publishers, printers, writers, book industry
related activities, students and the private education sector.

THE FIRST DIVISION OF THE On February 26, 1996, petitioner was appointed to the Governing Board as a
SANDIGANBAYAN and the private sector representative for a term of one (1) year.[6] During that time, she
PEOPLE OF THE PHILIPPINES, was also the President of the Book Suppliers Association of the Philippines
Respondents. (BSAP). She was on a hold-over capacity in the following year. On September
14, 1998, she was again appointed to the same position and for the same
x----------------------------------------------------- period of one (1) year.[7] Part of her functions as a member of the Governing
x Board is to attend book fairs to establish linkages with international book
publishing bodies. On September 29, 1997, she was issued by the Office of
the President a travel authority to attend the Madrid International Book Fair
DECISION in Spain on October 8-12, 1997.[8] Based on her itinerary of travel,[9] she was
paid P139,199.00[10] as her travelling expenses.
PERALTA, J.: Unfortunately, petitioner was not able to attend the scheduled international
book fair.

Before the Court is a petition for certiorari[1] under Rule 65 of the Rules of Court
filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898,
entitled People of the Philippines, Plaintiff versus Carolina R. Javier,
Accused, seeking to nullify respondent Sandiganbayan's: (1) Order[2] dated
November 14, 2000 in Criminal Case No. 25867, which denied her Motion to
Quash Information; (2) Resolution[3] dated January
2001 in Criminal Case No. 25898, which denied her Motion
Reconsideration and Motion to Quash Information; and (3) Order [4] dated
February 12, 2001, declaring that a motion for reconsideration in Criminal
Case No. 25898 would be superfluous as the issues are fairly simple and
straightforward.
The factual antecedents follow.
On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner
to immediately return/refund her cash advance considering that her trip was
canceled.[11]Petitioner, however, failed to do so. On July 6, 1998, she was
issued a Summary of Disallowances[12] from which the balance for settlement
amounted to P220,349.00. Despite said notice, no action was forthcoming
17, from the petitioner.
for
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of
the NBDB, filed with the Ombudsman a complaint against petitioner for
malversation of public funds and properties. She averred that despite the
cancellation of the foreign trip, petitioner failed to liquidate or return to the
NBDB her cash advance within sixty (60) days from date of arrival, or in this
case from the date of cancellation of the trip, in accordance with government
accounting and auditing rules and regulations. Dr. Apolonio further charged
35
petitioner with violation of Republic Act (R.A.) No. 6713[13] for failure to file her
Statement of Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation of
Section 3(e) of R.A. No. 3019,[14] as amended, and recommended the filing of
the corresponding information.[15] It, however, dismissed for insufficiency of
evidence, the charge for violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged with
violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
That on or about October 8, 1997, or for sometime prior or subsequent thereto,
in the City of Quezon, Philippines and within the jurisdiction of this Honorable
Court, the aforenamed accused, a public officer, being then a member of the
governing Board of the National Book Development Board (NBDB), while in
the performance of her official and administrative functions, and acting with
evident bad faith or gross inexcusable negligence, did then and there willfully,
unlawfully and criminally, without any justifiable cause, and despite due
demand by the Resident Auditor and the Executive Director of NBDB, fail and
refuse to return and/or liquidate her cash advances intended for official travel
abroad which did not materialize, in the total amount of P139,199.00 as of
September 23, 1999, as required under EO No. 248 and Sec. 5 of COA
Circular No. 97-002 thereby causing damage and undue injury to
the Government.
CONTRARY TO LAW.[16]
The case was docketed as Criminal Case No. 25867 and raffled to the First
Division.
Meanwhile, the Commission on Audit charged petitioner with Malversation of
Public Funds, as defined and penalized under Article 217 of the Revised Penal
Code, for not liquidating the cash advance granted to her in connection with
her supposed trip to Spain. During the conduct of the preliminary investigation,
petitioner was required to submit her counter-affidavit but she failed to do
so. The Ombudsman found probable cause to indict petitioner for the crime
charged and recommended the filing of the corresponding information against
her. [17]
Thus, an Information dated February 29, 2000 was filed before the
Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled
to the Third Division, the accusatory portion of which reads:
That on or about and during the period from October 8, 1997 to February 16,
1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
a high ranking officer, being a member of the Governing Board of the National
Book Development Board and as such, is accountable for the public funds she
received as cash advance in connection with her trip to Spain from October 8-
12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip
did not materialize, did then and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her own personal use and
benefit the aforementioned amount of P139,199.00, Philippine currency, to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.[18]
During her arraignment in Criminal Case No. 25867, petitioner pleaded not
guilty. Thereafter, petitioner delivered to the First Division the money subject
of the criminal cases, which amount was deposited in a special trust account
during the pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No.
25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3,
2000, petitioner filed with the same Division a Motion for Consolidation [19] of
Criminal Case No. 25898 with Criminal Case No. 25867, pending before the
First Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to
Admit Amended Information[20] in Criminal Case No. 25898, which was
granted. Accordingly, the Amended Information dated June 28, 2000 reads as
follows:
That on or about and during the period from October 8, 1997 to February 16,
1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
a high ranking officer, being a member of the Governing Board of the National
Book Development Board equated to Board Member II with a salary grade
28 and as such, is accountable for the public funds she received as case
advance in connection with her trip to Spain from October 8-12, 1997, per LBP
Check No. 10188 in the amount of P139,199.00, which trip did not materialize,
did then and there willfully, unlawfully and feloniously take, malverse,
misappropriate, embezzle and convert to her own personal use and benefit
the aforementioned amount of P139,199.00, Philippine currency, to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.[21]
36
In its Resolution dated October 5, 2000, the Third Division ordered the
consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. [22]
On October 10, 2000, petitioner filed a Motion to Quash
Information,[23] averring that the Sandiganbayan has no jurisdiction to hear
Criminal Case No. 25867 as the information did not allege that she is a public
official who is classified as Grade 27 or higher. Neither did the information
charge her as a co-principal, accomplice or accessory to a public officer
committing an offense under the Sandiganbayan's jurisdiction. She also
averred that she is not a public officer or employee and that she belongs to the
Governing Board only as a private sector representative under R.A. No. 8047,
hence, she may not be charged under R.A. No. 3019 before the
Sandiganbayan or under any statute which covers public officials. Moreover,
she claimed that she does not perform public functions and is without any
administrative or political power to speak of that she is serving the private book
publishing industry by advancing their interest as participant in the
government's book development policy.
In an Order[24] dated November 14, 2000, the First Division[25] denied the
motion to quash with the following disquisition:
The fact that the accused does not receive any compensation in terms of
salaries and allowances, if that indeed be the case, is not the sole qualification
for being in the government service or a public official. The National Book
Development Board is a statutory government agency and the persons who
participated therein even if they are from the private sector, are public officers
to the extent that they are performing their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that monies
were advanced to the accused in her capacity as Director of the National Book
Development Board for purposes of official travel. While indeed under ordinary
circumstances a member of the board remains a private individual, still when
that individual is performing her functions as a member of the board or when
that person receives benefits or when the person is supposed to travel abroad
and is given government money to effect that travel, to that extent the private
sector representative is a public official performing public functions; if only for
that reason, and not even considering situation of her being in possession of
public funds even as a private individual for which she would also covered by
provisions of the Revised Penal Code, she is properly charged before this
Court.
On November 15, 2000, the First Division accepted the consolidation of the
criminal cases against petitioner and scheduled her arraignment on November
17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested
that she is not prepared to accept the propriety of the accusation since it refers
to the same subject matter as that covered in Criminal Case No. 25867 for
which the Sandiganbayan gave her time to file a motion to
quash. On November 22, 2000, petitioner filed a Motion to Quash the
Information[26] in Criminal Case No. 25898, by invoking her right against double
jeopardy. However, her motion was denied in open court. She then filed a
motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution [27] denying
petitioners motion with the following disquisition:
The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D.
1606 as amended so provides, thus:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
xxxx
The offense is office-related because the money for her travel abroad was
given to her because of her Directorship in the National Book Development
Board.
Furthermore, there are also allegations to hold the accused liable under Article
222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions. The provisions of this
chapter shall apply to private individuals who, in any capacity whatever, have
charge of any insular, provincial or municipal funds, revenues, or property and
to any administrator or depository of funds or property attached , seized or
deposited by public authority, even if such property belongs to a private
individual.
Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on
the ground of litis pendencia is denied since in this instance, these two
Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and
the Revised Penal Code, neither of which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the Sandiganbayan
has committed grave abuse of discretion amounting to lack of jurisdiction for
not quashing the two informations charging her with violation of the Anti-Graft
37
Law and the Revised Penal Code on malversation of public funds. She
advanced the following arguments in support of her petition, to wit: first, she is
not a public officer, and second, she was being charged under two (2)
informations, which is in violation of her right against double jeopardy.
A motion to quash an Information is the mode by which an accused assails the
validity of a criminal complaint or Information filed against him for insufficiency
on its face in point of law, or for defects which are apparent in the face of the
Information.[28]
Well-established is the rule that when a motion to quash in a criminal case is
denied, the remedy is not a petition for certiorari, but for petitioners to go to
trial, without prejudice to reiterating the special defenses invoked in their
motion to quash. Remedial measures as regards interlocutory orders, such as
a motion to quash, are frowned upon and often dismissed. The evident reason
for this rule is to avoid multiplicity of appeals in a single action. [29]
The above general rule, however admits of several exceptions, one of which
is when the court, in denying the motion to dismiss or motion to quash, acts
without or in excess of jurisdiction or with grave abuse of discretion,
then certiorari or prohibition lies. The reason is that it would be unfair to require
the defendant or accused to undergo the ordeal and expense of a trial if the
court has no jurisdiction over the subject matter or offense, or is not the court
of proper venue, or if the denial of the motion to dismiss or motion to quash is
made with grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be plain and
adequate.[30]
To substantiate her claim, petitioner maintained that she is not a public officer
and only a private sector representative, stressing that her only function among
the eleven (11) basic purposes and objectives provided for in Section 4, R.A.
No. 8047, is to obtain priority status for the book publishing industry. At
the time of her appointment to the NDBD Board, she was the President of the
BSAP, a book publishers association. As such, she could not be held liable for
the crimes imputed against her, and in turn, she is outside the jurisdiction of
the Sandiganbayan.
The NBDB is the government agency mandated to develop and support the
Philippine book publishing industry. It is a statutory government agency
created by R.A. No. 8047, which was enacted into law to ensure the full
development of the book publishing industry as well as for the creation of
organization structures to implement the said policy. To achieve this end, the
Governing Board of the NBDB was created to supervise the
implementation. The Governing Board was vested with powers and functions,
to wit:
a) assume responsibility for carrying out and implementing the policies,
purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and guidelines
for undertaking activities relative to promoting book development, production
and distribution as well as an incentive scheme for individual authors and
writers;
c) formulate policies, guidelines and mechanisms to ensure that editors,
compilers and especially authors are paid justly and promptly royalties due
them for reproduction of their works in any form and number and for whatever
purpose;
d) conduct or contract research on the book publishing industry including
monitoring, compiling and providing data and information of book production;
e) provide a forum for interaction among private publishers, and, for the
purpose, establish and maintain liaison will all the segments of the book
publishing industry;
f) ask the appropriate government authority to ensure effective implementation
of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this Act in
consultation with other agencies concerned, except for Section 9 hereof on
incentives for book development, which shall be the concern of appropriate
agencies involved;
h) approve, with the concurrence of the Department of Budget and
Management (DBM), the annual and supplemental budgets submitted to it by
the Executive director;
i) own, lease, mortgage, encumber or otherwise real and personal property for
the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper administration of
its affairs, the conduct of its operations or the accomplishment of its purposes
and objectives;
k) receive donations, grants, legacies, devices and similar acquisitions which
shall form a trust fund of the Board to accomplish its development plans on
book publishing;
l) import books or raw materials used in book publishing which are exempt
from all taxes, customs duties and other charges in behalf of persons and
enterprises engaged in book publishing and its related activities duly
registered with the board;
m) promulgate rules and regulations governing the matter in which the general
affairs of the Board are to be exercised and amend, repeal, and modify such
rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the positions
of the Executive Officer and Deputy Executive Officer of the Board;
38
o) adopt rules and procedures and fix the time and place for holding meetings:
Provided, That at least one (1) regular meeting shall be held monthly;
p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and
other related activities on book development such as indigenous authorship,
intellectual property rights, use of alternative materials for printing, distribution
and others; and
q) exercise such other powers and perform such other duties as may be
required by the law.[31]
A perusal of the above powers and functions leads us to conclude that they
partake of the nature of public functions. A public office is the right, authority
and duty, created and conferred by law, by which, for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual
is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public. The
individual so invested is a public officer.[32]
Notwithstanding that petitioner came from the private sector to sit as a member
of the NBDB, the law invested her with some portion of the sovereign functions
of the government, so that the purpose of the government is achieved. In this
case, the government aimed to enhance the book publishing industry as it has
a significant role in the national development. Hence, the fact that she was
appointed from the public sector and not from the other branches or agencies
of the government does not take her position outside the meaning of a public
office. She was appointed to the Governing Board in order to see to it that the
purposes for which the law was enacted are achieved. The Governing Board
acts collectively and carries out its mandate as one body. The purpose of the
law for appointing members from the private sector is to ensure that they are
also properly represented in the implementation of government objectives to
cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer
pursuant to the Anti-Graft Law, which provides that a public officer includes
elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the government.[33]
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been
elected or appointed to a public office. Petitioner was appointed by the
President to the Governing Board of the NDBD. Though her term is only for a
year that does not make her private person exercising a public function. The
fact that she is not receiving a monthly salary is also of no moment. Section 7,
R.A. No. 8047 provides that members of the Governing Board shall receive
per diem and such allowances as may be authorized for every meeting actually
attended and subject to pertinent laws, rules and regulations. Also, under the
Anti-Graft Law, the nature of one's appointment, and whether the
compensation one receives from the government is only nominal, is immaterial
because the person so elected or appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any
person who, by direct provision of the law, popular election, popular election
or appointment by competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands, or shall perform
in said Government or in any of its branches public duties as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed to be a
public officer.[34]
Where, as in this case, petitioner performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a public officer who takes part in the
performance of public functions in the government whether as an employee,
agent, subordinate official, of any rank or classes. In fact, during her tenure,
petitioner took part in the drafting and promulgation of several rules and
regulations implementing R.A. No. 8047. She was supposed to represent the
country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for the
Court to resolve is whether, as a public officer, petitioner is within the
jurisdiction of the Sandiganbayan.
Presently,[35] the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 989 (Republic Act No. 6758),
specifically including:
xxxx
(2) Members of Congress and officials thereof classified as Grade Grade
'27' and up under the Compensation and Position Classification Act of 1989;
39
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairmen and members of Constitutional Commission, without prejudice
to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade Grade '27' and
higher under the Compensation and Position Classification Act of 1989.
xxxx
Notably, the Director of Organization, Position Classification and
Compensation Bureau, of the Department of Budget and management
provided the following information regarding the compensation and position
classification and/or rank equivalence of the member of the Governing Board
of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is
composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio),
and nine (9) Members, four (4) of whom are ex-officio and the remaining five
(5) members represent the private sector. The said five members of the Board
do not receive any salary and as such their position are not classified and are
not assigned any salary grade.
For purposes however of determining the rank equivalence of said positions,
notwithstanding that they do not have any salary grade assignment, the same
may be equated to Board Member II, SG-28.[36]
Thus, based on the Amended Information in Criminal Case No. 25898,
petitioner belongs to the employees classified as SG-28, included in the
phrase all other national and local officials classified as Grade 27' and higher
under the Compensation and Position Classification Act of 1989.
pleaded to the charge.[37] In the instant case, petitioner pleaded not guilty to
the Information for violation of the Anti-Graft Law. She was not yet arraigned
in the criminal case for malversation of public funds because she had filed a
motion to quash the latter information. Double jeopardy could not, therefore,
attach considering that the two cases remain pending before the
Sandiganbayan and that herein petitioner had pleaded to only one in the
criminal cases against her.
It is well settled that for a claim of double jeopardy to prosper, the following
requisites must concur: (1) there is a complaint or information or other formal
charge sufficient in form and substance to sustain a conviction; (2) the same
is filed before a court of competent jurisdiction; (3) there is a valid arraignment
or plea to the charges; and (4) the accused is convicted or acquitted or the
case is otherwise dismissed or terminated without his express consent.[38] The
third and fourth requisites are not present in the case at bar.
In view of the foregoing, We hold that the present petition does not fall under
the exceptions wherein the remedy of certiorari may be resorted to after the
denial of one's motion to quash the information. And even assuming that
petitioner may avail of such remedy, We still hold that the Sandiganbayan did
not commit grave abuse of discretion amounting to lack of or in excess of
jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and
Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.
SO ORDERED.

Anent the issue of double jeopardy, We can not likewise give in to the
contentions advanced by petitioner. She argued that her right against double
jeopardy was violated when the Sandiganbayan denied her motion to quash
the two informations filed against her.

We believe otherwise. Records show that the Informations in Criminal Case

Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A.
No. 3019 and RPC, respectively. It is elementary that for double jeopardy to
attach, the case against the accused must have been dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction,
upon valid information sufficient in form and substance and the accused
40
RUPERTO A. AMBIL, JR., G.R. No. 175457 Practices Act, as amended. On September 22, 1999, the new President of the
Petitioner, IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no
longer interested in pursuing the case against petitioners. Thus, he
recommended the dismissal of the complaint against petitioners.[8]
- versus - Nonetheless, in an Information[9] dated January 31, 2000, petitioners Ambil,
Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e)
of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation,
SANDIGANBAYAN and PEOPLE OF THE the Office of the Ombudsman issued a Memorandum[10] dated August 4, 2000,
PHILIPPINES, recommending the dismissal of the complaint as regards Balano and the
Respondent. amendment of the Information to include the charge of Delivering Prisoners
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x from Jail under Article 156[11] of the Revised Penal Code, as amended, (RPC)
against the remaining accused. The Amended Information[12] reads:
ALEXANDRINO R. APELADO, SR., G.R. No. 175482 That on or about the 6th day of September 1998, and for sometime prior [or]
Petitioner, Present: subsequent thereto, [in] the Municipality of Borongan, Province of Eastern
Samar, Philippines, and within the jurisdiction of this Honorable Court, [the]
CORONA, C.J., above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial
Chairperson, Governor of Eastern Samar, and Alexandrino R. Apelado, being then the
- versus - CARPIO,* Provincial Warden of Eastern Samar, both having been public officers, duly
BERSAMIN, elected, appointed and qualified as such, committing the offense in relation to
DEL CASTILLO, and office, conniving and confederating together and mutually helping x x x each
VILLARAMA, JR., JJ. other, with deliberate intent, manifest partiality and evident bad faith, did then
and there wilfully, unlawfully and criminally order and cause the release from
PEOPLE OF THE PHILIPPINES, Promulgated: the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in
Respondent. Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued
July 6, 2011 by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan,
Eastern Samar, and thereafter placed said detention prisoner (Mayor
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Francisco Adalim) under accused RUPERTO A. AMBIL, JR.s custody, by
allowing said Mayor Adalim to stay at accused Ambils residence for a period
DECISION of Eighty-Five (85) days, more or less which act was done without any court
VILLARAMA, JR., J.: order, thus accused in the performance of official functions had given
Before us are two consolidated petitions for review on certiorari filed by unwarranted benefits and advantage to detainee Mayor Francisco Adalim to
petitioner Ruperto A. Ambil, Jr.[1] and petitioner Alexandrino R. Apelado the prejudice of the government.
Sr.[2] assailing the Decision[3] promulgated on September 16, 2005 and CONTRARY TO LAW.
Resolution[4] dated November 8, 2006 of the Sandiganbayan in Criminal Case BAIL BOND RECOMMENDED: P30,000.00 each.[13]
No. 25892. On arraignment, petitioners pleaded not guilty and posted bail.
The present controversy arose from a letter[5] of Atty. David B. Loste, President At the pre-trial, petitioners admitted the allegations in the Information. They
of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to reason, however, that Adalims transfer was justified considering the imminent
the Office of the Ombudsman, praying for an investigation into the alleged threats upon his person and the dangers posed by his detention at the
transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. provincial jail. According to petitioners, Adalims sister, Atty. Juliana A. Adalim-
10963 for murder, from the provincial jail of Eastern Samar to the residence of White, had sent numerous prisoners to the same jail where Mayor Adalim was
petitioner, then Governor Ruperto A. Ambil, Jr. In a Report[6] dated January 4, to be held.
1999, the National Bureau of Investigation (NBI) recommended the filing of Consequently, the prosecution no longer offered testimonial evidence and
criminal charges against petitioner Ambil, Jr. for violation of Section 3(e) [7] of rested its case after the admission of its documentary exhibits. Petitioners filed
Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt
41
a Motion for Leave to File Demurrer to Evidence with Reservation to Present
Evidence in Case of Denial[14] but the same was denied.
At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty.
Juliana A. Adalim-White and Mayor Francisco C. Adalim.
Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from
1998 to 2001. According to him, it was upon the advice of Adalims lawyers that
he directed the transfer of Adalims detention to his home. He cites poor
security in the provincial jail as the primary reason for taking personal custody
of Adalim considering that the latter would be in the company of inmates who
were put away by his sister and guards identified with his political
opponents.[15]
For her part, Atty. White stated that she is the District Public Attorney of
Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor
Adalim was arrested while they were attending a wedding in Sulat, Eastern
Samar, on September 6, 1998. According to Atty. White, she sought the
alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein
petitioner Apelado, Sr. failed to guarantee the mayors safety. [16]
Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern
Samar. He confirmed his arrest on September 6, 1998 in connection with a
murder case filed against him in the Regional Trial Court (RTC) of Borongan,
Eastern Samar. Adalim confirmed Atty. Whites account that he spotted
inmates who served as bodyguards for, or who are associated with, his political
rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture
to him with a raised clenched fist. Sensing danger, he called on his sister for
help. Adalim admitted staying at Ambil, Jr.s residence for almost three months
before he posted bail after the charge against him was downgraded to
homicide.[17]
Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of
Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano
fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty.
White was contesting the legality of Mayor Adalims arrest and arguing with the
jail guards against booking him for detention. At the provincial jail, petitioner
was confronted by Atty. White who informed him that he was under the
governor, in the latters capacity as a provincial jailer. Petitioner claims that it
is for this reason that he submitted to the governors order to relinquish custody
of Adalim.[18]
Further, petitioner Apelado, Sr. described the physical condition of the jail to
be dilapidated and undermanned. According to him, only two guards were
incharge of looking after 50 inmates. There were two cells in the jail, each
housing 25 inmates, while an isolation cell of 10 square meters was
unserviceable at the time. Also, there were several nipa huts within the
perimeter for use during conjugal visits.[19]
On September 16, 2005, the Sandiganbayan, First Division, promulgated the
assailed Decision[20] finding petitioners guilty of violating Section 3(e) of R.A.
No. 3019. The court ruled that in moving Adalim to a private residence,
petitioners have conspired to accord him unwarranted benefits in the form of
more comfortable quarters with access to television and other privileges that
other detainees do not enjoy. It stressed that under the Rules, no person under
detention by legal process shall be released or transferred except upon order
of the court or when he is admitted to bail.[21]
The Sandiganbayan brushed aside petitioners defense that Adalims transfer
was made to ensure his safety. It observed that petitioner Ambil, Jr. did not
personally verify any actual threat on Adalims life but relied simply on the
advice of Adalims lawyers. The Sandiganbayan also pointed out the
availability of an isolation cell and nipa huts within the 10-meter-high perimeter
fence of the jail which could have been used to separate Adalim from other
prisoners. Finally, it cited petitioner Ambil, Jr.s failure to turn over Adalim
despite advice from Assistant Secretary Jesus Ingeniero of the Department of
Interior and Local Government.
Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an
indeterminate penalty of imprisonment for nine (9) years, eight (8) months and
one (1) day to twelve (12) years and four (4) months. In favor of petitioner
Apelado, Sr., the court appreciated the incomplete justifying circumstance of
obedience to a superior order and sentenced him to imprisonment for six (6)
years and one (1) month to nine (9) years and eight (8) months.
Hence, the present petitions.
Petitioner Ambil, Jr. advances the following issues for our consideration:
I
WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS
AMENDED, APPLIES TO PETITIONERS CASE BEFORE THE
SANDIGANBAYAN.
II
WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A
PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO.
3019, AS AMENDED.
III
WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT,
MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE
NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e).
IV
WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND
JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF
THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V,
REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A
DETENTION PRISONER.
V
42
WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING
CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL
EXERCISE OF A RIGHT OR OFFICE.
VI
WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED
BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS
GUILT BEYOND REASONABLE DOUBT.[22]
For his part, petitioner Apelado, Sr. imputes the following errors on the
Sandiganbayan:
I maintains that Adalim is deemed a private party for purposes of applying
THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION
OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED
APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-
ACCUSED AMBIL.
II
IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE
DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN
PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR
THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11
OF THE REVISED PENAL CODE.
III
THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL
AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM
UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x
OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.[23]
The issues raised by petitioner Ambil, Jr. can be summed up into three: (1)
Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A.
No. 3019; (2) Whether a provincial governor has authority to take personal
custody of a detention prisoner; and (3) Whether he is entitled to the justifying
circumstance of fulfillment of duty under Article 11(5)[24] of the RPC.
Meanwhile, petitioner Apelado, Sr.s assignment of errors can be condensed
into two: (1) Whether he is guilty beyond reasonable doubt of violating Section
3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying
circumstance of obedience to an order issued by a superior for some lawful
purpose under Article 11(6)[25] of the RPC.
Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019
does not apply to his case because the provision contemplates only
transactions of a pecuniary nature. Since the law punishes a public officer who
extends unwarranted benefits to a private person, petitioner avers that he
cannot be held liable for extending a favor to Mayor Adalim, a public
officer. Further, he claims good faith in taking custody of the mayor pursuant
to his duty as a Provincial Jailer under the Administrative Code of
1917.Considering this, petitioner believes himself entitled to the justifying
circumstance of fulfillment of duty or lawful exercise of duty.
Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy
between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he
was merely following the orders of a superior when he transferred the
detention of Adalim. As well, he invokes immunity from criminal liability.
For the State, the Office of the Special Prosecutor (OSP) points out the
absence of jurisprudence that restricts the application of Section 3(e), R.A. No.
3019 to transactions of a pecuniary nature. The OSP explains that it is enough
to show that in performing their functions, petitioners have accorded undue
preference to Adalim for liability to attach under the provision. Further, the OSP
Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not
to his person as a mayor, but to his person as a detention prisoner accused of
murder. It suggests further that petitioners were motivated by bad faith as
evidenced by their refusal to turn over Adalim despite instruction from Asst.
Sec. Ingeniero. The OSP also reiterates petitioners lack of authority to take
custody of a detention prisoner without a court order. Hence, it concludes that
petitioners are not entitled to the benefit of any justifying circumstance.
After a careful review of this case, the Court finds the present petitions bereft
of merit.
Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or
the Anti-Graft and Corrupt Practices Act which provides:
Section. 3. Corrupt practices of public officers. - In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations
charged with the grant of licenses or permits or other concessions.
In order to hold a person liable under this provision, the following elements
must concur: (1) the accused must be a public officer discharging
administrative, judicial or official functions; (2) he must have acted with
manifest partiality, evident bad faith or gross inexcusable negligence; and (3)
his action caused any undue injury to any party, including the government, or
gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions.[26]
As to the first element, there is no question that petitioners are public officers
discharging official functions and that jurisdiction over them lay with the
Sandiganbayan.Jurisdiction of the Sandiganbayan over public officers
charged with violation of the Anti-Graft Law is provided under Section 4 of
43
Presidential Decree No. 1606,[27] as amended by R.A. No. 8249.[28] The
pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows:
SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade 27 and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan and provincial treasurers, assessors, engineers and other
provincial department heads[;]
xxxx
In cases where none of the accused are occupying positions corresponding to
Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or
military and PNP officers mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial court, as the case may
be, pursuant to their respective jurisdiction as provided in Batas Pambansa
Blg. 129, as amended.
xxxx
Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond
question. The same is true as regards petitioner Apelado, Sr. As to him, a
Certification[29] from the Provincial Government Department Head of the
HRMO shows that his position as Provincial Warden is classified as Salary
Grade 22. Nonetheless, it is only when none of the accused are occupying
positions corresponding to salary grade 27 or higher shall exclusive jurisdiction
be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a
co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan
has jurisdiction. Accordingly, he was correctly tried jointly with said public
officer in the proper court which had exclusive original jurisdiction over them
the Sandiganbayan.
The second element, for its part, describes the three ways by which a violation
of Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest
partiality, evident bad faith or gross inexcusable negligence.
In Sison v. People,[30] we defined partiality, bad faith and gross negligence as
follows:
Partiality is synonymous with bias which excites a disposition to see and report
matters as they are wished for rather than as they are. Bad faith does not
simply connote bad judgment or negligence; it imputes a dishonest purpose or
some moral obliquity and conscious doing of a wrong; a breach of sworn duty
through some motive or intent or ill will; it partakes of the nature of fraud. Gross
negligence has been so defined as negligence characterized by the want of
even slight care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but wilfully and intentionally with a conscious indifference
to consequences in so far as other persons may be affected. It is the omission
of that care which even inattentive and thoughtless men never fail to take on
their own property. x x x[31]
In this case, we find that petitioners displayed manifest partiality and evident
bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.s
house. There is no merit to petitioner Ambil, Jr.s contention that he is
authorized to transfer the detention of prisoners by virtue of his power as the
Provincial Jailer of Eastern Samar.
Section 28 of the Local Government Code draws the extent of the power of
local chief executives over the units of the Philippine National Police within
their jurisdiction:
SEC. 28. Powers of Local Chief Executives over the Units of the Philippine
National Police.The extent of operational supervision and control of local chief
executives over the police force, fire protection unit, and jail management
personnel assigned in their respective jurisdictions shall be governed by the
provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A.
No. 6975), otherwise known as The Department of the Interior and Local
Government Act of 1990, and the rules and regulations issued pursuant
thereto.
In particular, Section 61, Chapter 5 of R.A. No. 6975[32] on the Bureau of Jail
Management and Penology provides:
Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision
and control over all city and municipal jails. The provincial jails shall be
supervised and controlled by the provincial government within its
jurisdiction, whose expenses shall be subsidized by the National Government
for not more than three (3) years after the effectivity of this Act.
The power of control is the power of an officer to alter or modify or set aside
what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.[33] An officer in
control lays down the rules in the doing of an act. If they are not followed, he
may, in his discretion, order the act undone or re-done by his subordinate or
he may even decide to do it himself.[34]
On the other hand, the power of supervision means overseeing or the authority
of an officer to see to it that the subordinate officers perform their duties. [35] If
the subordinate officers fail or neglect to fulfill their duties, the official may take
such action or step as prescribed by law to make them perform their
duties. Essentially, the power of supervision means no more than the power
of ensuring that laws are faithfully executed, or that subordinate officers act
44
within the law.[36] The supervisor or superintendent merely sees to it that the
rules are followed, but he does not lay down the rules, nor does he have
discretion to modify or replace them.[37]
Significantly, it is the provincial government and not the governor alone which
has authority to exercise control and supervision over provincial jails. In any
case, neither of said powers authorizes the doing of acts beyond the
parameters set by law. On the contrary, subordinates must be enjoined to act
within the bounds of law. In the event that the subordinate performs an act ultra
vires, rules may be laid down on how the act should be done, but always in
conformity with the law.
In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr.
cites Section 1731, Article III of the Administrative Code of 1917 on Provincial
jails in support.Section 1731 provides:
SEC. 1731. Provincial governor as keeper of jail.The governor of the
province shall be charged with the keeping of the provincial jail, and it
shall be his duty to administer the same in accordance with law and the
regulations prescribed for the government of provincial prisons. The
immediate custody and supervision of the jail may be committed to the care of
a jailer to be appointed by the provincial governor. The position of jailer shall
be regarded as within the unclassified civil service but may be filled in the
manner in which classified positions are filled, and if so filled, the appointee
shall be entitled to all the benefits and privileges of classified employees,
except that he shall hold office only during the term of office of the appointing
governor and until a successor in the office of the jailer is appointed and
qualified, unless sooner separated. The provincial governor shall, under
the direction of the provincial board and at the expense of the province,
supply proper food and clothing for the prisoners; though the provincial
board may, in its discretion, let the contract for the feeding of the prisoners to
some other person. (Emphasis supplied.)
This provision survived the advent of the Administrative Code of 1987. But
again, nowhere did said provision designate the provincial governor as the
provincial jailer, or even slightly suggest that he is empowered to take personal
custody of prisoners. What is clear from the cited provision is that the provincial
governors duty as a jail keeper is confined to the administration of the jail and
the procurement of food and clothing for the prisoners. After all, administrative
acts pertain only to those acts which are necessary to be done to carry out
legislative policies and purposes already declared by the legislative body or
such as are devolved upon it[38] by the Constitution. Therefore, in the exercise
of his administrative powers, the governor can only enforce the law but not
supplant it.
Besides, the only reference to a transfer of prisoners in said article is found in
Section 1737[39] under which prisoners may be turned over to the jail of the
neighboring province in case the provincial jail be insecure or insufficient to
accommodate all provincial prisoners. However, this provision has been
superseded by Section 3, Rule 114 of the RevisedRules of Criminal
Procedure, as amended. Section 3, Rule 114 provides:
SEC. 3. No release or transfer except on court order or bail.-No person under
detention by legal process shall be released or transferred except upon order
of the court or when he is admitted to bail.
Indubitably, the power to order the release or transfer of a person under
detention by legal process is vested in the court, not in the provincial
government, much less the governor.This was amply clarified by Asst. Sec.
Ingeniero in his communication[40] dated October 6, 1998 addressed to
petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:
06 October 1996
GOVERNOR RUPERTO AMBIL
Provincial Capitol
Borongan, Eastern Samar
Dear Sir:
This has reference to the letter of Atty. Edwin B. Docena, and the reports
earlier received by this Department, relative to your alleged action in taking
into custody Mayor Francisco Aising Adalim of Taft, that province, who has
been previously arrested by virtue by a warrant of arrest issued in Criminal
Case No. 10963.
If the report is true, it appears that your actuation is not in accord with the
provision of Section 3, Rule 113 of the Rules of Court, which mandates that an
arrested person be delivered to the nearest police station or jail.
Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of
the accused municipal mayor is misplaced. Said section merely speaks of the
power of supervision vested unto the provincial governor over provincial jails.
It does not, definitely, include the power to take in custody any person in
detention.
In view of the foregoing, you are hereby enjoined to conduct yourself within
the bounds of law and to immediately deliver Mayor Adalim to the provincial
jail in order to avoid legal complications.
Please be guided accordingly.
Very truly yours,
(SGD.)
JESUS I. INGENIERO
Assistant Secretary
45
Still, petitioner Ambil, Jr. insisted on his supposed authority as a provincial
jailer. Said petitioners usurpation of the court's authority, not to mention his
open and willful defiance to official advice in order to accommodate a former
political party mate,[41] betray his unmistakable bias and the evident bad faith
that attended his actions.
Likewise amply established beyond reasonable doubt is the third element of
the crime. As mentioned above, in order to hold a person liable for violation of
Section 3(e), R.A. No. 3019, it is required that the act constituting the offense
consist of either (1) causing undue injury to any party, including the
government, or (2) giving any private party any unwarranted benefits,
advantage or preference in the discharge by the accused of his official,
administrative or judicial functions.
In the case at hand, the Information specifically accused petitioners of giving
unwarranted benefits and advantage to Mayor Adalim, a public officer charged
with murder, by causing his release from prison and detaining him instead at
the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability
of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is
not applicable to him allegedly because the last sentence thereof provides that
the provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses, permits or other concessions
and he is not such government officer or employee. Second, the purported
unwarranted benefit was accorded not to a private party but to a public officer.
However, as regards his first contention, it appears that petitioner Ambil, Jr.
has obviously lost sight, if he is not altogether unaware, of our ruling
in Mejorada v. Sandiganbayan[42] where we held that a prosecution for
violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or
not the accused public officer is charged with the grant of licenses or permits
or other concessions. Following is an excerpt of what we said in Mejorada,
Section 3 cited above enumerates in eleven subsections the corrupt practices
of any public officers (sic) declared unlawful. Its reference to any public officer
is without distinction or qualification and it specifies the acts declared
unlawful. We agree with the view adopted by the Solicitor General that the
last sentence of paragraph [Section 3] (e) is intended to make clear the
inclusion of officers and employees of officers (sic) or government corporations
which, under the ordinary concept of public officers may not come within the
term. It is a strained construction of the provision to read it as applying
exclusively to public officers charged with the duty of granting licenses or
permits or other concessions.[43] (Italics supplied.)
In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a
prosecution for violation of said provision will lie regardless of whether the
accused public officer is charged with the grant of licenses or permits or other
concessions.[45]
Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section 2(b) of
R.A. No. 3019 defines a public officer to include elective and appointive
officials and employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even nominal from
the government. Evidently, Mayor Adalim is one. But considering that Section
3(e) of R.A. No. 3019 punishes the giving by a public officer of unwarranted
benefits to a private party, does the fact that Mayor Adalim was the recipient
of such benefits take petitioners case beyond the ambit of said law?
We believe not.
In drafting the Anti-Graft Law, the lawmakers opted to use private party rather
than private person to describe the recipient of the unwarranted benefits,
advantage or preference for a reason. The term party is a technical word
having a precise meaning in legal parlance[46] as distinguished from person
which, in general usage, refers to a human being.[47]Thus, a private person
simply pertains to one who is not a public officer. While a private party is more
comprehensive in scope to mean either a private person or a public officer
acting in a private capacity to protect his personal interest.
In the present case, when petitioners transferred Mayor Adalim from the
provincial jail and detained him at petitioner Ambil, Jr.s residence, they
accorded such privilege to Adalim, not in his official capacity as a mayor, but
as a detainee charged with murder. Thus, for purposes of applying the
provisions of Section 3(e), R.A. No. 3019, Adalim was a private party.
Moreover, in order to be found guilty under the second mode, it suffices that
the accused has given unjustified favor or benefit to another in the exercise of
his official, administrative or judicial functions.[48] The word unwarranted
means lacking adequate or official support; unjustified; unauthorized or without
justification or adequate reason.Advantage means a more favorable or
improved position or condition; benefit, profit or gain of any kind; benefit from
some course of action. Preference signifies priority or higher evaluation or
desirability; choice or estimation above another.[49]
Without a court order, petitioners transferred Adalim and detained him in a
place other than the provincial jail. The latter was housed in much more
comfortable quarters, provided better nourishment, was free to move about
the house and watch television. Petitioners readily extended these benefits to
Adalim on the mere representation of his lawyers that the mayors life would be
put in danger inside the provincial jail.
As the Sandiganbayan ruled, however, petitioners were unable to establish
the existence of any risk on Adalims safety. To be sure, the latter would not be
alone in having unfriendly company in lockup. Yet, even if we treat Akyatans
gesture of raising a closed fist at Adalim as a threat of aggression, the same
would still not constitute a special and compelling reason to warrant Adalims
detention outside the provincial jail. For one, there were nipa huts within the
perimeter fence of the jail which could have been used to separate Adalim
from the rest of the prisoners while the isolation cell was undergoing
repair. Anyhow, such repair could not have exceeded the 85 days that Adalim
stayed in petitioner Ambil, Jr.s house. More importantly, even if Adalim could
46
have proven the presence of an imminent peril on his person to petitioners, a
court order was still indispensable for his transfer.
The foregoing, indeed, negates the application of the justifying circumstances
claimed by petitioners.
Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of
fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article
11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office does not incur any criminal liability. In order for this
justifying circumstance to apply, two requisites must be satisfied: (1) the
accused acted in the performance of a duty or in the lawful exercise of a right
or office; and (2) the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such
right or office.[50] Both requisites are lacking in petitioner Ambil, Jr.s case.
As we have earlier determined, petitioner Ambil, Jr. exceeded his authority
when he ordered the transfer and detention of Adalim at his house. Needless
to state, the resulting violation of the Anti-Graft Law did not proceed from the
due performance of his duty or lawful exercise of his office.
In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of
obedience to an order issued for some lawful purpose. Under paragraph 6,
Article 11 of the RPC, any person who acts in obedience to an order issued by
a superior for some lawful purpose does not incur any criminal liability. For this
justifying circumstance to apply, the following requisites must be present: (1)
an order has been issued by a superior; (2) such order must be for some lawful
purpose; and (3) the means used by the subordinate to carry out said order is
lawful.[51] Only the first requisite is present in this case.
While the order for Adalims transfer emanated from petitioner Ambil, Jr., who
was then Governor, neither said order nor the means employed by petitioner
Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail
Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the
provincial jail and, unarmed with a court order, transported him to the house of
petitioner Ambil, Jr. This makes him liable as a principal by direct participation
under Article 17(1)[52] of the RPC.
An accepted badge of conspiracy is when the accused by their acts aimed at
the same object, one performing one part of and another performing another
so as to complete it with a view to the attainment of the same object, and their
acts although apparently independent were in fact concerted and cooperative,
indicating closeness of personal association, concerted action and
concurrence of sentiments.[53]
Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful
cooperation in executing petitioner Ambil, Jr.s order to move Adalim from jail,
despite the absence of a court order. Petitioner Apelado, Sr., a law graduate,
cannot hide behind the cloak of ignorance of the law. The Rule requiring a
court order to transfer a person under detention by legal process is
elementary. Truth be told, even petitioner governor who is unschooled in the
intricacies of the law expressed reservations on his power to transfer
Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr.
resulting in the violation charged, makes them equally responsible as
conspirators.
As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No.
3019 punishes a public officer or a private person who violates Section 3 of
R.A. No. 3019 with imprisonment for not less than six (6) years and one (1)
month to not more than fifteen (15) years and perpetual disqualification from
public office. Under Section 1 of the Indeterminate Sentence Law or Act No.
4103, as amended by Act No. 4225, if the offense is punished by a special law,
the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by the same.
Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of
imprisonment for nine (9) years, eight (8) months and one (1) day to twelve
(12) years and four (4) months is in accord with law. As a co-principal without
the benefit of an incomplete justifying circumstance to his credit, petitioner
Apelado, Sr. shall suffer the same penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of the
Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH
MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R.
Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No.
3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an
indeterminate penalty of imprisonment for nine (9) years, eight (8) months and
one (1) day to twelve (12) years and four (4) months.
With costs against the petitioners.
SO ORDERED.
47
 violation of the Anti-Graft and Corrupt Practices Act particularly Section 3(g)
thereof, or entering on behalf of government in any contract or transaction
VENANCIO R. NAVA, G.R. No. 160211 manifestly and grossly disadvantageous to the same whether or not the
Petitioner, pubic officer profited or will profit thereby. In the absence of any aggravating
Present: or mitigating circumstances, applying the Indeterminate Sentence Law,
accused is hereby sentenced to suffer the penalty of imprisonment of six (6)
PANGANIBAN, CJ, Chairperson, years, and one (1) day as minimum to twelve (12) years and one (1) day as
- versus - YNARES-SANTIAGO, maximum and to suffer perpetual disqualification from public office. Accused
AUSTRIA-MARTINEZ, Nava is further ordered to pay the government the amount of P380,013.60
CALLEJO, SR., and which it suffered by way of damages because of the unlawful act or omission
CHICO-NAZARIO, JJ committed by the herein accused Venancio Nava.
The Honorable Justices
RODOLFO G. PALATTAO, From the narration of facts, there hardly appears any circumstance that
GREGORY S. ONG, and would suggest the existence of conspiracy among the other accused in the
MA. CRISTINA G. CORTEZ- commission of the crime.
ESTRADA as Members of the
Sandiganbayans Fourth Division, and Thus in the absence of conspiracy in the commission of the crime
the PEOPLE OF THE PHILIPPINES, Promulgated: complained of and as the herein other accused only acted upon the orders of
Respondents. August 28, 2006 accused Venancio Nava, in the absence of any criminal intent on their part to
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x violate the law, the acts of the remaining accused are not considered corrupt
practices committed in the performance of their duties as public officers and
consequently, accused AJATIL JAIRAL Y PONGCA, ROSALINDA MERKA Y
DECISION GUANZON & JOSEPH VENTURA Y ABAD are hereby considered innocent
of the crime charged and are hereby acquitted.[3]

PANGANIBAN, CJ:
The assailed Resolution dated September 29, 2003, denied reconsideration.

A meticulous review of the records and the evidence establishes the guilt of The Facts
the accused beyond reasonable doubt. Clearly, the prosecution was able to
prove all the elements of the crime charged. Hence, the conviction of
petitioner is inevitable. The Sandiganbayan narrated the facts of this case as follows:

The Case
Before us is a Petition for Certiorari[1] under Rule 65 of the Rules of Court,
assailing the June 2, 2003 Decision[2] and September 29, 2003Resolution of
the Sandiganbayan in Criminal Case No. 23627. The dispositive portion of
the challenged Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered
convicting accused VENANCIO NAVA Y RODRIGUEZ of the crime of
The complaint involving the herein accused was initiated by the COA, Region
XI, Davao City, which resulted from an audit conducted by a team which was
created by the COA Regional Office per COA Regional Assignment Order
No. 91-74 dated January 8, 1991. The objective of the team [was] to conduct
an audit of the 9.36 million allotment which was released in 1990 by the
DECS, Region XI to its Division Offices.
In the Audit Report, the amount of P603,265.00 was shown to have been
released to the DECS Division of Davao del Sur for distribution to the newly
nationalized high schools located within the region. Through the initiative of
accused Venancio Nava, a meeting was called among his seven (7) schools
48
division superintendents whom he persuaded to use the money or allotment
for the purchase of Science Laboratory Tools and Devices (SLTD). In other
words, instead of referring the allotment to the one hundred fifty-five (155)
heads of the nationalized high schools for the improvement of their facilities,
accused Nava succeeded in persuading his seven (7) schools division
superintendents to use the allotment for the purchase of science education
facilities for the calendar year 1990.
In the purchase of the school materials, the law provides that the same shall
be done through a public bidding pursuant to Circular No. 85-55, series of
1985. But in the instant case, evidence shows that accused Nava persuaded
his seven (7) schools division superintendents to ignore the circular as
allegedly time was of the essence in making the purchases and if not done
before the calendar year 1990, the funds allotted will revert back to the
general fund.
In the hurried purchase of SLTDs, the provision on the conduct of a public
bidding was not followed. Instead the purchase was done through
negotiation. Evidence shows that the items were purchased from Jovens
Trading, a business establishment with principal address at Tayug,
Pangasinan; D[I]mplacable Enterprise with principal business address at 115
West Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242
Oroqueta Street, Sta. Cruz, Manila. As disclosed by the audit report, the
prices of the [SLTDs] as purchased from the above-named sellers exceeded
the prevailing market price ranging from 56% to 1,175% based on the
mathematical computation done by the COA audit team. The report
concluded that the government lost P380,013.60. That the injury to the
government as quantified was the result of the non-observance by the
accused of the COA rules on public bidding and DECS Order No. 100
suspending the purchases of [SLTDs].[4]
The Commission on Audit (COA) Report recommended the filing of criminal
and administrative charges against the persons liable, including petitioner,
before the Office of the Ombudsman-Mindanao.
Petitioner was subsequently charged in an Information [5] filed on April 8,
1997, worded as follows:
That on or about the period between November to December 1990, and for
sometime prior or subsequent thereto, in Digos, Davao Del Sur and/or Davao
City, Philippines and within the jurisdiction of this Honorable Court, the
accused Venancio R. Nava (DECS-Region XI Director) and Ajatil Jairal
(Division Superintendent, DECS, Davao del Sur), both high[-]ranking officials
and Rosalinda Merka, and Teodora Indin (Administrative Officer and
Assistant Division Superintendent, respectively of DECS-Division of Davao
Del Sur), all low ranking officials, while in the discharge of their respective
official functions, committing the offense in relation to their office and with
grave abuse [of] authority, conniving and confederating with one another, did
then and there willfully, unlawfully and feloniously enter, on behalf of the
government, into transactions with DImplacable Enterprise and Jovens
Trading, respectively, represented by accused Antonio S. Tan and Evelyn
Miranda and Joseph Ventura for the purchase of Science Laboratory Tools
and Devices (SLTD) intended for use by the public high schools in the area
amounting to [P603,265.00], Philippine currency, without the requisite public
bidding and in violation of DECS Order No. 100, Series of 1990, which
transaction involved an overprice in the amount of P380,013.60 and thus, is
manifestly and grossly disadvantageous to the government.[6]
Special Prosecution Officer II Evelyn T. Lucero-Agcaoili recommended the
dismissal of the foregoing Information on the ground, among others, that
there was no probable cause. She argued that only estimates were made to
show the discrepancy of prices instead of a comparative listing on an item to
item basis.[7] The recommendation was disapproved, however, by then
Ombudsman Aniano A. Desierto.
Ruling of the Sandiganbayan
After due trial, only petitioner was convicted, while all the other accused were
acquitted.[8]
Petitioner was found guilty of violating Section 3(g) of the Anti-Graft and
Corrupt Practices Act, or entering on behalf of the government any contract
or transaction manifestly and grossly disadvantageous to the latter, whether
or not the public officer profited or would profit thereby.
The Sandiganbayan (SBN) said that, in the purchase of the Science
Laboratory Tools and Devices (SLTDs), petitioner had not conducted a public
bidding in accordance with COA Circular No. 85-55A. As a result, the prices
of the SLTDs, as purchased, exceeded the prevailing market price from 56
percent to 1,175 percent, based on the mathematical computations of the
COA team.[9] In his defense, petitioner had argued that the said COA Circular
49
was merely directory, not mandatory. Further, the purchases in question had
been done in the interest of public service.[10]
The Sandiganbayan did not give credence to the foregoing defenses raised
by petitioner. On the contrary, it found the evidence adduced by petitioners
co-accused, Superintendent Ajatil Jairal, to be enlightening, manifesting an
intricate web of deceit spun by petitioner and involving all the other
superintendents in the process.[11]
The graft court did not accept the claim of petitioner that he signed the
checks only after the other signatories had already signed them. The
evidence showed that blank Philippine National Bank (PNB) checks had
been received by Nila E. Chavez, a clerk in the regional office, for petitioners
signature. The
Sandiganbayan opined that the evidence amply supported Jairals testimony
that the questioned transactions had emanated from the regional office, as in
fact, all the documents pertinent to the transaction had already been
prepared and signed by petitioner when the meeting with the superintendents
was called sometime in August 1990.[12]
In that meeting, the superintendents were given prepared documents like the
Purchase Orders and vouchers, together with the justification.[13] This
circumstance prompted Jairal to conduct his own canvass. The
Sandiganbayan held that this act was suggestive of the good faith of Jairal,
thereby negating any claim of conspiracy with the other co-accused and, in
particular, petitioner.
In its assailed Resolution, the SBN denied petitioners Motion for
Reconsideration. It held that the series of acts culminating in the questioned
transactions constituted violations of Department of Education, Culture and
Sports (DECS) Order No. 100; and COA Circular No. 85-55A. Those acts,
ruled the SBN, sufficiently established that the contract or transaction
entered into was manifestly or grossly disadvantageous to the government.
Hence, this Petition.[14]
The Issues
Petitioner raises the following issues for our consideration:
I. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in upholding the findings of
the Special Audit Team that irregularly conducted the audit beyond the
authorized period and which team falsified the Special Audit Report.
II. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in upholding the findings in
the special audit report where the Special Audit Team egregiously failed to
comply with the minimum standards set by the Supreme Court and adopted
by the Commission on Audit in violation of petitioners right to due process,
and which report suppressed evidence favorable to the petitioner.
III. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in upholding the findings in
the Special Audit Report considering that none of the allegedly overpriced
items were canvassed or purchased by the Special Audit Team such that
there is no competent evidence from which to determine that there was an
overprice and that the transaction was manifestly and grossly
disadvantageous to the government.
IV. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in finding that there was an
overprice where none of the prices of the questioned items exceeded the
amount set by the Department of Budget and Management.
V. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in selectively considering the
findings in the decision in Administrative Case No. XI-91-088 and failing to
consider the findings thereon that petitioner was justified in undertaking a
negotiated purchase and that there was no overpricing.
VI. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in selectively considering the
findings of XI-91-088 and failing to consider the findings thereon that
petitioner was justified in undertaking a negotiated purchase, there was no
overpricing, and that the purchases did not violate DECS Order No. 100.
VII. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in failing to absolve the
petitioner where conspiracy was not proven and the suppliers who benefited
from the alleged overpricing were acquitted.
VIII. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in admitting in evidence and
giving probative value to Exhibit 8 the existence and contents of which are
fictitious.
IX. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in giving credence to the self-
50
serving and perjurious testimony of co-accused Ajatil Jairal that the
questioned transactions emanated from the regional office [in spite] of the
documentary evidence and the testimony of the accused supplier which
prove that the transaction emanated from the division office of Digos headed
by co-accused Ajatil Jairal.
X. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in finding that the petitioner
entered into a transaction that was manifestly and grossly disadvantageous
to the government where the evidence clearly established that the
questioned transactions were entered into by the division office of Digos
through co-accused Ajatil Jairal.
XI. Whether the public respondent committed grave abuse of discretion
amounting to a lack of or excess of jurisdiction in convicting the petitioner in
the absence of proof beyond reasonable doubt.[15]
All these issues basically refer to the question of whether the Sandiganbayan
committed reversible errors (not grave abuse of discretion) in finding
petitioner guilty beyond reasonable doubt of violation of Section 3(g),
Republic Act No. 3019.
The Courts Ruling
The Petition has no merit.
Procedural Issue:
Propriety of Certiorari
At the outset, it must be stressed that to contest the Sandiganbayans
Decision and Resolution on June 2, 2003 and September 29, 2003,
respectively, petitioner should have filed a petition for review on certiorari
under Rule 45, not the present Petition for Certiorari under Rule 65. Section
7 of Presidential Decree No. 1606,[16] as amended by Republic Act No.
8249,[17] provides that [d]ecisions and final orders of the Sandiganbayan shall
be appealable to the Supreme Court by petition for review on certiorari
raising pure questions of law in accordance with Rule 45 of the Rules of
Court. Section 1 of Rule 45 of the Rules of Court likewise provides that [a]
party desiring to appeal by certiorari from a judgment or final order or
resolution of the x x x Sandiganbayan x x x whenever authorized by law, may
file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be distinctly set forth.
Basic is the principle that when Rule 45 is available, recourse under Rule 65
cannot be allowed either as an add-on or as a substitute for appeal.[18]The
special civil action for certiorari is not and cannot be a substitute for an
appeal, when the latter remedy is available.[19]
This Court has consistently ruled that a petition for certiorari under Rule 65
lies only when there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.[20] A remedy is considered plain,
speedy and adequate if it will promptly relieve the petitioner from the injurious
effects of the judgment and the acts of the lower court or agency or as in this
case, the Sandiganbayan.[21] Since the assailed Decision and Resolution
were dispositions on the merits, and the Sandiganbayan had no remaining
issue to resolve, an appeal would have been the plain, speedy and adequate
remedy for petitioner.
To be sure, the remedies of appeal and certiorari are mutually exclusive and
not alternative or successive.[22] For this procedural lapse, the Petition should
have been dismissed outright.
Nonetheless, inasmuch as it was filed within the 15-day period provided
under Rule 45, the Court treated it as a petition for review (not certiorari)
under Rule 45 in order to accord substantial justice to the parties. Thus, it
was given due course and the Court required the parties to file their
Memoranda.
Main Issue:
Sufficiency of Evidence
Petitioner argues that the Sandiganbayan erred in convicting him, because
the pieces of evidence to support the charges were not
convincing.Specifically, he submits the following detailed argumentation:
1. the Special Audit Report was fraudulent, incomplete, irregular, inaccurate,
illicit and suppressed evidence in favor of the Petitioner;
2. there was no competent evidence to determine the overprice as none of
the samples secured by the audit team from the Division of Davao del Sur
were canvassed or purchased by the audit team;
51
3. the allegedly overpriced items did not exceed the amount set by the
Department of Budget and Management;
4. the decision in an administrative investigation were selectively lifted out of
context;
5. the administrative findings that Petitioner was justified in undertaking a
negotiated purchase, that there was no overpricing, and that the purchases
did not violate DECS Order No. 100 were disregarded;
6. Exhibit 8, the contents of which are fictitious, was admitted in evidence
and given probative value;
7. The suppliers who benefited from the transactions were acquitted, along
with the other accused who directly participated in the questioned
transactions; and
8. The self-serving and perjury-ridden statements of co-accused Jairal were
given credence despite documentary and testimonial evidence to the
contrary. [23]
Petitioner further avers that the findings of fact in the Decision dated October
21, 1996 in DECS Administrative Case No. XI-91-088[24] denied any
overpricing and justified the negotiated purchases in lieu of a public
bidding.[25] Since there was no overpricing and since he was justified in
undertaking the negotiated purchase, petitioner submits that he cannot be
convicted of violating Section 3(g) of Republic Act No. 3019.
Validity of Audit
The principal evidence presented during trial was the COA Special Audit
Report (COA Report). The COA is the agency specifically given the power,
authority and duty to examine, audit and settle all accounts pertaining to the
revenue and receipts of, and expenditures or uses of fund and property
owned by or pertaining to the government.[26] It has the exclusive authority to
define the scope of its audit and examination and to establish the required
techniques and methods.[27]
Thus, COAs findings are accorded not only respect but also finality, when
they are not tainted with grave abuse of discretion.[28] Only upon a clear
showing of grave abuse of discretion may the courts set aside decisions of
government agencies entrusted with the regulation of activities coming under
their special technical knowledge and training.[29] In this case, the SBN
correctly accorded credence to the COA Report. As will be shown later, the
Report can withstand legal scrutiny.
Initially, petitioner faults the audit team for conducting the investigation
beyond the twenty-one day period stated in the COA Regional Office
Assignment Order No. 91-174 dated January 8, 1991. But this delay by itself
did not destroy the credibility of the Report. Neither was it sufficient to
constitute fraud or indicate bad faith on the part of the audit team. Indeed, in
the conduct of an audit, the length of time the actual examination occurs is
dependent upon the documents involved. If the documents are voluminous,
then it necessarily follows that more time would be needed.[30] What is
important is that the findings of the audit should be sufficiently supported by
evidence.
Petitioner also imputes fraud to the audit team for making it appear that the
items released by the Division Office of Davao Del Sur on 21 February
1991 were compared with and became the basis for the purchase of exactly
the same items on 20 February 1991.[31]
The discrepancy regarding the date when the samples were taken and the
date of the purchase of the same items for comparison was not very
material. The discrepancy per se did not constitute fraud in the absence of ill
motive. We agree with respondents in their claim of clerical inadvertence. We
accept their explanation that the wrong date was written by the supplier
concerned when the items were bought for comparison. Anyway, the logical
sequence of events was clearly indicated in the COA Report:
1.5.1. Obtained samples of each laboratory tools and devices purchased by
the Division of Davao del Sur, Memorandum Receipts covering all the
samples were issued by the agency to the audit team and are marked as
Exhibits 1.2 and 3 of this Report.
1.5.2. Bought and presented these samples to reputable business
establishments in Davao City like Mercury Drug Store, Berovan Marketing
Incorporated and [A]llied Medical Equipment and Supply Corporation
(AMESCO) where these items are also available, for price verification.
1.5.3. Available items which were exactly the same as the samples
presented were purchased from AMESCO and Berovan Marketing
Incorporated, the business establishments which quoted the lowest prices.
Official receipts were issued by the AMESCO and Berovan Marketing
Incorporated which are hereto marked as Exhibits 4,5,6 and 7
respectively.[32]
The COA team then tabulated the results as follows:[33]
52
 Recanvassed % of Total Due Process
Purchased Price + 10% Over- Quantity Amount of
em Unit Cost Allow. Difference pricing Purchased Petitioner likewise invokes Arriola v. Commission on Audit[38] to support his
Overpricing
lask Brush claim that his right to due process was violated. In that case, this Court ruled
made of Nylon P112.20 P8.80 P103.40 1,175% 400 P41,360.00that the disallowance made by the COA was not sufficiently supported by
est Tube Glass evidence, as it was based on undocumented claims. Moreover, in Arriola, the
yrex (18x50 documents that were used as basis of the COA Decision were not shown to
mm) 22.36 14.30 8.06 56% 350 2,821.00 petitioners, despite their repeated demands to see them. They were denied
raduated access to the actual canvass sheets or price quotations from accredited
ylinder Pyrex suppliers.
100ml) 713.00 159.50 553.50 347% 324 179,334.00
As the present petitioner pointed out in his Memorandum, the foregoing
lass Spirit
jurisprudence became the basis for the COA to issue Memorandum Order
urner (alcohol
mp) 163.50 38.50 125.00 325% 144 18,000.00No. 97-012 dated March 31, 1997, which states:
pring Balance
3.2 To firm up the findings to a reliable degree of certainty, initial findings of
12.5kg)Germany 551.00 93.50 457.50 489% 102 46,665.00
overpricing based on market price indicators mentioned in pa. 2.1 above
on Wire Gauge 16.20 9.90 6.30 64% 47 296.10 have to be supported with canvass sheet and/or price quotations indicating:
unsen Burner 701.00 90.75 610.25 672% 150 91,537.50
Total P380,013.60 a) the identities of the suppliers or sellers;
What is glaring is the discrepancy in prices. The tabulated figures are b) the availability of stock sufficient in quantity to meet the requirements of
supported by Exhibits E-1, E-2, E-3, and E-4, the Official Receipts evidencing the procuring agency;
the equipment purchased by the audit team for purposes of comparison with c) the specifications of the items which should match those involved in the
those procured by petitioner.[34] The authenticity of these Exhibits is not finding of overpricing;
disputed by petitioner. As the SBN stated in its Decision, the fact of d) the purchase/contract terms and conditions which should be the same
overpricing -- as reflected in the aforementioned exhibits -- was testified to or as those of the questioned transaction
identified by Laura S. Soriano, team leader of the audit team.[35] It is
hornbook doctrine that the findings of the trial court are accorded great
weight, since it was able to observe the demeanor of witnesses firsthand and
up close.[36] In the absence of contrary evidence, these findings are Petitioners reliance on Arriola is misplaced. First, that Decision, more so, the
conclusive on this Court. COA Memorandum Order that was issued pursuant to the former, was
promulgated after the period when the audit in the present case was
It was therefore incumbent on petitioner to prove that the audit team or any of conducted. Neither Arriola nor the COA Memorandum Order can be given
its members thereof was so motivated by ill feelings against him that it came any retroactive effect.
up with a fraudulent report. Since he was not able to show any evidence to Second and more important, the circumstances in Arriola are different from
this end, his contention as to the irregularity of the audit due to the those in the present case. In the earlier case, the COA merely referred to a
discrepancy of the dates involved must necessarily fail. cost comparison made by the engineer of COA-Technical Services Office
An audit is conducted to determine whether the amounts allotted for certain (TSO), based on unit costs furnished by the Price Monitoring Division of the
expenditures were spent wisely, in keeping with official guidelines and COA-TSO. The COA even refused to show the canvass sheets to the
regulations. It is not a witch hunt to terrorize accountable public officials. The petitioners, explaining that the source document was confidential.
presumption is always that official duty has been regularly performed [37] --
both on the part of those involved with the expense allotment being audited In the present case, the audit team examined several documents before they
and on the part of the audit team -- unless there is evidence to the contrary. arrived at their conclusion that the subject transactions were grossly
disadvantageous to the government. These documents were included in the
53
Formal Offer of Evidence submitted to the Sandiganbayan.[39] Petitioner was
likewise presented an opportunity to controvert the findings of the audit team
during the exit conference held at the end of the audit, but he failed to do
so.[40]
Further, the fact that only three canvass sheets/price quotations were
presented by the audit team does not bolster petitioners claim that his right to
due process was violated. To be sure, there is no rule stating that all price
canvass sheets must be presented. It is enough that those that are made the
basis of comparison be submitted for scrutiny to the parties being audited.
Indubitably, these documents were properly submitted and testified to by the
principal prosecution witness, Laura Soriano. Moreover, petitioner had ample
opportunity to controvert them.
Public Bidding
Petitioner oscillates between denying that he was responsible for the
procurement of the questioned SLTDs, on the one hand; and, on the other,
stating that the negotiated purchase was justifiable under the circumstances.
On his disavowal of responsibility for the questioned procurement, he claims
that the transactions emanated from the Division Office of Digos headed by
Jairal.[41] However, in the administrative case[42] filed against petitioner before
the DECS, it was established that he gave the go signal[43] that prompted the
division superintendents to procure the SLTDs through negotiated
purchase. This fact is not disputed by petitioner, who quotes the same DECS
Decision in stating that his acts were justifiable under the circumstances then
obtaining at that time and for reasons of efficient and prompt distribution of
the SLTDs to the high schools.[44]
In justifying the negotiated purchase without public bidding, petitioner claims
that any delay in the enrichment of the minds of the public high school
students of Davao del Sur is detrimental and antithetical to public
service.[45] Although this reasoning is quite laudable, there was nothing
presented to substantiate it.
Executive Order No. 301 states the general rule that no contract for public
services or for furnishing supplies, materials and equipment to the
government or any of its branches, agencies or instrumentalities may be
renewed or entered into without public bidding. The rule however, is not
without exceptions. Specifically, negotiated contracts may be entered into
under any of the following circumstances:
a. Whenever the supplies are urgently needed to meet an emergency which
may involve the loss of, or danger to, life and/or property;
b. Whenever the supplies are to be used in connection with a project or
activity which cannot be delayed without causing detriment to the public
service;
c. Whenever the materials are sold by an exclusive distributor or
manufacturer who does not have subdealers selling at lower prices and for
which no suitable substitute can be obtained elsewhere at more
advantageous terms to the government;
d. Whenever the supplies under procurement have been unsuccessfully
placed on bid for at least two consecutive times, either due to lack of bidders
or the offers received in each instance were exorbitant or non-conforming to
specifications;
e. In cases where it is apparent that the requisition of the needed supplies
through negotiated purchase is most advantageous to the government to be
determined by the Department Head concerned;
f. Whenever the purchase is made from an agency of the government.[46]
National Center for Mental Health v. Commission on Audit[47] upheld the
validity of the negotiated contracts for the renovation and the improvement of
the National Center for Mental Health. In that case, petitioners were able to
show that the long overdue need to renovate the Center made it compelling
to fast track what had been felt to be essential in providing due and proper
treatment and care for the centers patients.[48]
This justification was likewise accepted in Baylon v. Ombudsman[49] in which
we recognized that the purchases were made in response to an emergency
brought about by the shortage in the blood supply available to the public. The
shortage was a matter recognized and addressed by then Secretary of
Health Juan M. Flavier, who attested that he directed the NKTI [National
Kidney and Transplant Institute] to do something about the situation and
immediately fast-track the implementation of the Voluntary Blood Donation
Program of the government in order to prevent further deaths owing to the
lack of blood.[50]
Unfortunately for petitioner, there was no showing of any immediate and
compelling justification for dispensing with the requirement of public
bidding. We cannot accept his unsubstantiated reasoning that a public
bidding would unnecessarily delay the purchase of the SLTDs. Not only
would he have to prove that indeed there would be a delay but, more
54
important, he would have to show how a public bidding would be detrimental
and antithetical to public service.
As the COA Report aptly states, the law on public bidding is not an empty
formality. It aims to secure the lowest possible price and obtain the best
bargain for the government. It is based on the principle that under ordinary
circumstances, fair competition in the market tends to lower prices and
eliminate favoritism.[51]
In this case, the DECS Division Office of Davao del Sur failed to conduct
public bidding on the subject transactions. The procurement of laboratory
tools and devices was consummated with only the following documents to
compensate for the absence of a public bidding:
1.13.a Price lists furnished by the Supply Coordination Office
1.13.b. Price lists furnished by the Procurement Services of the Department
of Budget and Management
1.13.c. Price lists of Esteem Enterprises[52]
The COA Report states that the Division Office merely relied on the above
documents as basis for concluding that the prices offered by DImplacable
Enterprises and Jovens Trading were reasonable. But as found by the COA,
reliance on the foregoing supporting documents was completely without merit
on the following grounds:
a. The Supply Coordination Office was already dissolved or abolished at the
time when the transactions were consummated, thus, it is illogical for the
management to consider the price lists furnished by the Supply Coordination
Office.
b. The indorsement letter made by the Procurement Services of the
Department of Budget and Management containing the price lists specifically
mentions Griffin and George brands, made in England. However, the
management did not procure these brands of [SLTDs].
c. The price lists furnished by the Esteem Enterprises does not deserve the
scantest consideration, since there is no law or regulation specifically
mentioning that the price lists of the Esteem Enterprises will be used as basis
for buying [SLTDs].[53]
Granting arguendo that petitioner did not have a hand in the procurement
and that the transactions emanated from the Division Office of Davao del
Sur, we still find him liable as the final approving authority. In fact, Exhibit B-2
-- Purchase Order No. 90-024, amounting to P231,012 and dated December
17, 1990 -- was recommended by Jairal and approved by petitioner.[54] This
exhibit was part of the evidence adduced in the Sandiganbayan to prove that
the purchase of the SLTDs was consummated and duly paid by the DECS
without any proof of public bidding.
Although this Court has previously ruled[55] that all heads of offices have to
rely to a reasonable extent on their subordinates and on the good faith of
those who prepare bids, purchase supplies or enter into negotiations, it is not
unreasonable to expect petitioner to exercise the necessary diligence in
making sure at the very least, that the proper formalities in the questioned
transaction were observed -- that a public bidding was conducted. This step
does not entail delving into intricate details of product quality, complete
delivery or fair and accurate pricing.
Unlike other minute requirements in government procurement, compliance or
non-compliance with the rules on public bidding is readily apparent; and the
approving authority can easily call the attention of the subordinates
concerned. To rule otherwise would be to render meaningless the
accountability of high-ranking public officials and to reduce their approving
authority to nothing more than a mere rubber stamp. The process of approval
is not a ministerial duty of approving authorities to sign every document that
comes across their desks, and then point
to their subordinates as the parties responsible if something goes awry.
Suspension of Purchases
Obviously working against petitioner is DECS Order No. 100 dated
September 3, 1990 which states thus:
In view of the Governments call for economy measures coupled with the
deficiency in allotments intended for the payment of salary standardization,
retirement benefits, bonus and other priority items, the procurement of
reference and supplementary materials, tools and devices equipment,
furniture, including land acquisition and land improvement shall be
suspended for CY 1990. However, the following items shall be exempted
from the said suspension:
a) textbooks published by the Instructional Materials Corporation
and its commercial edition;
b) elementary school desks and tablet arm chairs[.]
As the COA Report succinctly states, the Administrative Order is explicit in its
provisions that tools and devices were among the items whose procurement
was suspended by the DECS for the year 1990.
Petitioner claims that in the administrative case against him, there was no mention of
a violation of DECS Order No. 100.[56] He alleges that the purchases of SLTDs by the
division superintendents were entered into and perfected on July 1, 1990; that is,
more than two (2) months before the issuance of DECS Order No. 100. He also
55
alleged that the Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI in
the amount of P9.36M -- out of which P603,265.00 was used for the procurement of
the questioned SLTDs -- had been released by the DECS Central Office in August
1990, a month before the issuance of DECS Order No. 100.
The Court notes that these arguments are mere assertions bereft of any proof. There
was no evidence presented to prove that the SAA was issued prior to the effectivity of
DECS Order No. 100. On the other hand, the COA Report states that the
DECS Division of Davao del Sur received the following Letters of Advice of Allotments
(LAA):[57]
LAA NO. AMOUNT DATE OF LAA
DO CO471-774-90 P141,956.00 October 24, 1990
DO-CO471-797-90 P161,309.00 November 16, 1990
DO-CO471-1007-90 P300,000.00 December 14, 1990
The foregoing LAAs were attached as annexes[58] to the COA Report and were
presented during trial in the Sandiganbayan.[59]
Also, Schools Division Superintendent Jairal had sent a letter to petitioner, requesting
favorable consideration of a forthcoming release of funding for the different barangay
and municipal high schools. The letter was dated October 16, 1990,[60] and was made
well within the effectivity of the DECS Order. In that letter, Jairal mentioned the
receipt by his office of DECS Order No. 100, albeit wrongly interpreting it as
suspending only the purchases of reference books, supplementary readers, and so
on, but allegedly silent on the purchase of laboratory supplies and materials. [61]
Finally, the SLTDs were purchased within the covered period of DECS Order No.
100, as evidenced by the following relevant
documents adduced by the COA audit team, among others:
1) Disbursement Voucher dated November 27, 1990 for the payment of various
laboratory supplies and materials by DECS, Davao del Sur in the amount
of P303,29.40[62]
2) Official Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued
by Jovens Trading[63]
3) Report of Inspection dated November 26, 1990 signed by Jacinta Villareal and
Felicisimo Canoy[64]
4) Sales Invoice No. 044 dated November 26, 1990 issued by Jovens Trading in
favor of DECS amounting to P303,259.40[65]
5) Certificate of Acceptance dated November 27, 1990 signed by Felicismo
Canoy[66]
6) Purchase Order No. 90-021 in favor of Jovens Trading dated November 26,
1990 recommended for approval by Ajatil Jairal[67]
7) Official Receipt No. 92356 dated January 7, 1991 issued by DImplacable
Enterprises amounting to P231,012.00[68]
8) Purchase Order No. 90-024 dated December 17, 1990 recommended for
approval by Ajatil Jairal and approved Director Venancio Nava amounting
to P231,012.00.[69]
The confluence of the foregoing circumstances indubitably establishes that petitioner
indeed wantonly disregarded regulations. Additionally, DECS Order No. 100 negates
his claim that the negotiated transaction -- done instead of a public bidding -- was
justified. If that Order suspended the acquisition of tools and devices, then there was
all the more reason for making purchases by public bidding. Since the buying of tools
and devices was specifically suspended, petitioner cannot argue that the purchases
were done in the interest of public service.
Proof of Guilt
To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be
clearly proven that 1) the accused is a public officer; 2) the public officer entered into
a contract or transaction on behalf of the government; and 3) the contract or
transaction was grossly and manifestly disadvantageous to the government. [70]
From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the
evidence presented warranted a verdict of conviction. Petitioner is a public officer,
who approved the transactions on behalf of the government, which thereby suffered a
substantial loss. The discrepancy between the prices of the SLTDs purchased by the
DECS and the samples purchased by the COA audit team clearly established such
undue injury. Indeed, the discrepancy was grossly and manifestly disadvantageous to
the government.
We must emphasize however, that the lack of a public bidding and the violation of an
administrative order do not by themselves satisfy the third element of Republic Act
No. 3019, Section 3(g); namely, that the contract or transaction entered into was
manifestly and grossly disadvantageous to the government, as seems to be stated in
the Resolution of the Sandiganbayan denying the Motion for Reconsideration. [71] Lack
of public bidding alone does not result in a manifest and gross disadvantage. Indeed,
the absence of a public bidding may mean that the government was not able to
secure the lowest bargain in its favor and may open the door to graft and
corruption. Nevertheless, the law requires that the disadvantage must be manifest
and gross. Penal laws are strictly construed against the government. [72]
If the accused is to be sent to jail, it must be because there is solid evidence to pin
that person down, not because of the omission of a procedural matter alone.
Indeed, all the elements of a violation of Section 3(g) of Republic Act No. 3019 should
be established to prove the culpability of the accused.In this case, there is a clear
showing that all the elements of the offense are present. Thus, there can be no other
conclusion other than conviction.
We note, however, that petitioner was sentenced to suffer the penalty of six (6) years
and one (1) day as minimum to twelve (12) years and one (1) day as
maximum. Under Section 9 of Republic Act 3019, petitioner should be punished with
imprisonment of not less than six (6) years and one (1) month nor more than fifteen
years. Thus, we adjust the minimum penalty imposed on petitioner in accordance with
the law.
56
WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution Marquez and Caunan, along with four (4) other local government officials
are AFFIRMED, with the MODIFICATION that the minimum sentence imposed shall of Paraaque City[3] and private individual Antonio Razo (Razo), were charged under
be six (6) years and one (1) month, not six (6) years and one (1) day. Costs against five (5) Informations, to wit:
petitioner.
The Information in Criminal Case No. 27944 states:
.
OFELIA C. CAUNAN, G.R. Nos. 181999 & 182001-04
That on January 11, 1996 or thereabout, in Paraaque City, Philippines, and within the
Petitioner, jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a
high ranking public official, being the City Mayor of Paraaque City and Chairman,
- versus - Committee on Awards, together with the members of the aforesaid Committee,
namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL,
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG
Respondents. 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN
X----------------------------X ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing
JOEY P. MARQUEZ, the offense in relation to their official duties and taking advantage of their official
Petitioner, G.R. Nos. 182020-24 positions, conspiring, confederating and mutually helping one another and with the
accused private individual ANTONIO RAZO, the owner and proprietor of ZARO
Present: Trading, a business entity registered with the Bureau of Domestic Trade and Industry,
with evident bad faith and manifest partiality (or at the very least, with gross
- versus - YNARES-SANTIAGO, J., inexcusable negligence), did then and there willfully, unlawfully and criminally enter
Chairperson, into manifestly and grossly disadvantageous transactions, through personal canvass,
CHICO-NAZARIO, with said ZARO Trading, for the purchase of 5,998 pieces of walis ting-ting at P25 per
VELASCO, JR., piece as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE
NACHURA, and HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS
THE SANDIGANBAYAN-FOURTH DIVISION and PEOPLE OF PERALTA, JJ. (P149,950.00), without complying with the Commission on Audit (COA) Rules and
THE PHILIPPINES, Regulations and other requirements on Procurement and Public Bidding, and which
Respondents. Promulgated: transactions were clearly grossly overpriced as the actual cost per piece of the walis
ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision
September 2, 2009 No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or
a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED
x------------------------------------------------------------------------------------x SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to the
government in the aforesaid sum.

DECISION The Information in Criminal Case No. 27946 states:

NACHURA, J.:
At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of
Court which assail the Decision[1] dated August 30, 2007 and Resolution[2] dated
March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952,
27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia C. Caunan
(Caunan) guilty of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.
That on June 30, 1997 or thereabout, in Paraaque City, Philippines and within the
jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a
high ranking public official, being the City Mayor of Paraaque City and Chairman,
Committee on Awards, together with members of the aforesaid committee,
namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL,
the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG
26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN
ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing
the offense in relation to their official duties and taking advantage of their official
positions, conspiring, confederating and mutually helping one another and with
accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O]
Trading, a business entity registered with the Bureau of Domestic Trade and Industry,
with evident bad faith and manifest partiality (or at the very least, with gross
inexcusable negligence), did then and there willfully, unlawfully and criminally enter

57
into manifestly and grossly disadvantageous transactions, through personal canvass,
with ZAR[O] Trading for the purchase of 23,334 pieces of walis ting-ting at P15.00 per
piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE
HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying with
the Commission on Audit (COA) Rules and Regulations and other requirements on
Procurement and Public Bidding, and which transactions were clearly grossly
overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found
by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003
with a difference, therefore, of P4.00 per piece or a total overpriced amount of
NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS
(P93,336.00), thus causing damage and prejudice to the government in the aforesaid
sum.
The Information in Criminal Case No. 27952 states:
That [in] September 1997, or thereabout, in Paraaque City, Philippines and within the
jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a
high ranking public official, being the City Mayor of Paraaque City and Chairman,
Committee on Awards, together with members of the aforesaid committee,
namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL,
the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG
26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN
ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing
the offense in relation to their official duties and taking advantage of their official
positions, conspiring, confederating and mutually helping one another and with
accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O]
Trading, a business entity registered with the Bureau of Domestic Trade and Industry,
with evident bad faith and manifest partiality (or at the very least, with gross
inexcusable negligence), did then and there willfully, unlawfully and criminally enter
into manifestly and grossly disadvantageous transactions, through personal canvass,
with ZAR[O] Trading for the purchase of 8,000 pieces of walis ting-ting at P15.00 per
piece as per Disbursement Voucher No. 101-98-02-561 in the total amount of ONE
HUNDRED TWENTY THOUSAND PESOS (P120,000.00), without complying with the
Commission on Audit (COA) Rules and Regulations and other requirements on
Procurement and Public Bidding, and which transactions were clearly grossly
overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found
by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003
with a difference, therefore, of P4.00 per piece or a total overpriced amount of
THIRTY TWO THOUSAND PESOS (P32,000.00), thus causing damage and
prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27953 states:
That during the period from February 11, 1997 to February 20, 1997, or thereabout, in
Paraaque City, Philippines and within the jurisdiction of this Honorable Court,
accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the
City Mayor of Paraaque City and Chairman, Committee on Awards, together with
members of the aforesaid committee, namely:SILVESTRE DE LEON, being then the
City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M.
BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General
Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG
26), acting as such and committing the offense in relation to their official duties and
taking advance of their official positions, conspiring, confederating and mutually
helping one another and with accused private individual ANTONIO RAZO, the owner
and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of
Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the
very least, with gross inexcusable negligence), did then and there willfully, unlawfully
and criminally enter into manifestly and grossly disadvantageous transactions,
through personal canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of
walis ting-ting on several occasions at P25.00 per piece without complying with the
Commission on Audit (COA) Rules and Regulations and other requirements on
procurement and Public Bidding and which purchases are hereunder enumerated as
follows:
Date of Transaction Voucher No. Amount Quantity
February 20, 1997 101-97-04-1755 P 3,000.00 120 pcs.
February 12, 1997 101-97-04-1756 P100,000.00 4,000 pcs.
February 11, 1997 101-97-04-1759 P149,500.00 5,980 pcs.
in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS
(P252,000.00), and which transactions were clearly overpriced as the actual cost per
piece of the walis ting-ting was only P11.00 as found by the Commission on Audit
(COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore,
of P14.00 per piece or a total overpriced amount of ONE HUNDRED FORTY ONE
THOUSAND FOUR HUNDRED PESOS (P141,400.00), thus, causing damage and
prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27954 states:
That during the period from October 15, 1996 to October 18, 1996 or thereabout,
in Paraaque City, Philippines and within the jurisdiction of this Honorable Court,
accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the
City Mayor of Paraaque City and Chairman, Committee on Awards, together with
members of the aforesaid committee, namely:SILVESTRE DE LEON, being then the
City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M.
BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General
Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG
26), acting as such and committing the offense in relation to their official duties and
taking advantage of their official positions, conspiring, confederating and mutually
helping one another and with accused private individual ANTONIO RAZO, the owner
and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of
58
Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the
very least, with gross inexcusable negligence), did then and there willfully, unlawfully
and criminally enter into manifestly and grossly disadvantageous transactions,
through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of
walis ting-ting on several occasions at P25.00 per piece without complying with the
Commission on Audit (COA) Rules and Regulations and other requirements on
procurement and Public Bidding and which purchases are hereunder enumerated as
follows:
Date of Transaction Voucher Number Amount Quantity
October 15, 1996 101-96-11-7604 P 100,000.00 4,000 pcs.
October 18, 1996 101-96-11-7605 P 100,000.00 4,000 pcs.
in the total amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), and
which transactions were clearly grossly overpriced as the actual cost per piece of the
walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its
Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per
piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS
(P112,000.00), thus, causing damage and prejudice to the government in the
aforesaid sum.[4]
The five (5) Informations were filed based on the findings of the Commission on Audit
(COA) Special Audit Team that there was overpricing in certain purchase transactions
of Paraaque City. In March 1999, a Special Audit Team composed of Fatima
Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by
virtue of Local Government Audit Office Assignment Order No. 99-002, audited
selected transactions of Paraaque City for the calendar years 1996 to 1998, including
the walis tingting purchases.
In connection with the walis tingting purchases audit, the audit team gathered the
following evidence:
1. Documents furnished by the Office of the City Mayor of Paraaque City upon
request of the audit team;
2. Sample walis tingting with handle likewise submitted by the Office of the City Mayor
of Paraaque City;
3. Samples of walis tingting without handle actually utilized by the street sweepers
upon ocular inspection of the audit team;
4. Survey forms accomplished by the street sweepers containing questions on
the walis tingting;
5. Evaluation by the Technical Services Department[5] of the reasonableness of
the walis tingting procurement compared to current prices thereof;
6. A separate canvass by the audit team on the prices of the walis tingting, including
purchases thereof at various merchandising stores;[6] and
7. Documents on the conduct and process of procurement of walis tingting by the
neighboring city of Las Pias.
Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to
1998, the audit team made a canvass of the purchase prices of the different
merchandise dealers of Paraaque City. All, however, were reluctant to provide the
team with signed quotations of purchase prices for walis tingting. In addition, the audit
team attempted to purchase walis tingting from the named suppliers
of Paraaque City. Curiously, when the audit team went to the listed addresses of the
suppliers, these were occupied by other business establishments. Thereafter, the
audit team located, and purchased from, a lone supplier that sold walis tingting.
As previously adverted to, the audit team made a report which contained the following
findings:
1. The purchase of walis tingting was undertaken without public bidding;
2. The purchase of walis tingting was divided into several purchase orders and
requests to evade the requirement of public bidding and instead avail of personal
canvass as a mode of procurement;
3. The purchase of walis tingting through personal canvass was attended with
irregularities; and
4. There was glaring overpricing in the purchase transactions.
Consequently, the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-
006-101 (96), 01-001-101 (97) to 01-011-101 (97), and 01-001-101 (98) to 01-004-
101 (98) covering the overpriced amount of P1,302,878.00 for the purchases of
142,612 walis tingting, with or without handle, by Paraaque City in the years 1996-
1998.[7]
Objecting to the disallowances, petitioners Marquez and Caunan, along with the other
concerned local government officials of Paraaque City, filed a request for
reconsideration with the audit team which the latter subsequently denied in a letter to
petitioner Marquez.
Aggrieved, petitioners and the other accused appealed to the COA which eventually
denied the appeal. Surprisingly, on motion for reconsideration, the COA excluded
petitioner Marquez from liability for the disallowances based on our rulings in Arias v.
Sandiganbayan[8] and Magsuci v. Sandiganbayan.[9]
On the other litigation front, the criminal aspect subject of this appeal, the
Ombudsman found probable cause to indict petitioners and the other local
government officials of Paraaque City for violation of Section 3(g) of R.A. No. 3019.
Consequently, the five (5) Informations against petitioners, et al. were filed before the
Sandiganbayan.
After trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding
petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou Tanael,
guilty of violating Section 3(g) of R.A. No. 3019. As for accused Flocerfida Babida,
Ailyn Romea and private individual Razo, the Sandiganbayan acquitted them for lack
of sufficient evidence to hold them guilty beyond reasonable doubt of the offenses
charged. The Sandiganbayan ruled as follows:
59

1. The prosecution evidence, specifically the testimony of Bermudez and the Special
Audit Teams report, did not constitute hearsay evidence, considering that all the
prosecution witnesses testified on matters within their personal knowledge;
2. The defense failed to question, and timely object to, the admissibility of
documentary evidence, such as the Las Pias City documents and the Department of
Budget and Management (DBM) price listing downloaded from the Internet, which
were certified true copies and not the originals of the respective documents;
3. The Bids and Awards Committee was not properly constituted; the accused did not
abide by the prohibition against splitting of orders; and Paraaque City had not been
afforded the best possible advantage for the most objective price in the purchase
of walis tingting for failure to observe the required public bidding;
4. The contracts for procurement of walis tingting in Paraaque City for the years 1996-
1998 were awarded to pre-selected suppliers; and
5. On the whole, the transactions undertaken were manifestly and grossly
disadvantageous to the government.
Expectedly, the remaining accused, Caunan, Marquez and Tanael, moved for
reconsideration of the Sandiganbayan decision. Caunan and Tanael, represented by
the same counsel, collectively filed a Motion for Reconsideration (with Written Notice
of Death of Accused Silvestre S. de Leon). Marquez filed several
motions,[10] including a separate Motion for Reconsideration.
All the motions filed by Marquez, as well as Caunans motion, were denied by the
Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason
to reconsider her conviction.
Hence, these separate appeals by petitioners Marquez and Caunan.
Petitioner Caunan posits the following issues:
1. [WHETHER] THE PROSECUTIONS PROOF OF OVERPRICING [IS] HEARSAY.
2. [WHETHER THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING
WITNESS FATIMA V. BERMUDEZ TESTIMONY DESPITE THE FACT THAT ITS
SOURCES ARE THEMSELVES ADMITTEDLY AND PATENTLY HEARSAY.
3. [WHETHER THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN
APPLYING AN EXCEPTION TO THE HEARSAY RULE[.] UNDER THIS
EXCEPTION, PUBLIC DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC
RECORDS, ETC., x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED
THEREIN.
4. CONSEQUENTLY, [WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY
ERRED IN NOT ACQUITTING [CAUNAN].[11]
For his part, petitioner Marquez raises the following:
1. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT
CRIMINAL CASES BASED ON THE DOCTRINES LAID DOWN IN THE ARIAS AND
MAGSUCI CASES EARLIER DECIDED BY THIS HONORABLE COURT AND THE
PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND OTHER
EXISTING REGULATIONS[;]
2. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT
CRIMINAL CASES SINCE HE WAS ALREADY EXCLUDED FROM LIABILITY BY
THE COMMISSION ON AUDIT[;]
3. WHETHER THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO
WHO WAS THE OTHER PARTY TO, AND RECEIVED THE TOTAL AMOUNT OF,
THE QUESTIONED CONTRACTS OR TRANSACTIONS, 2) CITY ACCOUNTANT
MARILOU TANAEL WHO PRE-AUDITED THE CLAIMS AND SIGNED THE
VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD
OF STAFF AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF
[MARQUEZS] GUILT BY THE SANDIGANBAYAN FOURTH DIVISION[;]
4. WHETHER [MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT
DUBIOUS EVIDENCE OF OVERPRICING OR ON MERE CIRCUMSTANTIAL
EVIDENCE THAT DO NOT AMOUNT TO PROOF OF GUILT BEYOND
REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;]
5. WHETHER THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR
CLAIMING THAT THE CONTRACTS OR TRANSACTIONS ENTERED INTO BY
[MARQUEZ] IN BEHALF OF PARAAQUE CITY WERE MANIFESTLY AND
GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED
OR DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH
THE REQUIREMENTS OR PROCEDURES PRESCRIBED UNDER COA
MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;]
6. WHETHER THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE WHICH [MARQUEZ]
ENJOYS IN THE SUBJECT CRIMINAL CASES[;]
7. WHETHER THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED
WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) OF THE SANDIGANBAYAN
FOURTH DIVISION REFUSED TO INHIBIT DESPITE SERIOUS CONFLICT OF
INTEREST[;]
8. WHETHER [MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT
CRIMINAL CASES[;]
9. WHETHER THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE
OF THE ACCUSATION AGAINST HIM WAS VIOLATED WHEN INSTEAD OF ONLY
ONE OFFENSE, SEVERAL INFORMATION HAD BEEN FILED IN THE TRIAL
COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF
BROOMSTICKS (WALIS TINGTING) BY WAY OF SPLITTING CONTRACTS OR
PURCHASE ORDERS[; and]
60

10. WHETHER [MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO
AN IMPARTIAL TRIAL WAS VIOLATED IN THE SUBJECT CRIMINAL CASES
WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) REFUSED TO INHIBIT
DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED BY
THE FORMER BEFORE THE JUDGMENT BECAME FINAL.[12]
In a Resolution dated February 23, 2009, we directed the consolidation of these
cases. Thus, we impale petitioners issues for our resolution:
1. First and foremost, whether the Sandiganbayan erred in finding petitioners guilty of
violation of Section 3(g) of R.A. No. 3019.
2. Whether the testimony of Bermudez and the report of the Special Audit Team
constitute hearsay and are, therefore, inadmissible in evidence against petitioners.
3. Whether petitioner Marquez should be excluded from liability based on our rulings
in Arias v. Sandiganbayan[13] and Magsuci v. Sandiganbayan.[14]
Both petitioners insist that the fact of overpricing, upon which the charge against them
of graft and corruption is based, had not been established by the quantum of
evidence required in criminal cases, i.e., proof beyond reasonable
doubt.[15] Petitioners maintain that the evidence of overpricing, consisting of the report
of the Special Audit Team and the testimony thereon of Bermudez, constitutes
hearsay and, as such, is inadmissible against them. In addition, petitioner Marquez
points out that the finding of overpricing was not shown to a reliable degree of
certainty as required by COA Memorandum No. 97-012 dated March 31, 1997.[16] In
all, petitioners asseverate that, as the overpricing was not sufficiently established,
necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 a contract or
transaction grossly and manifestly disadvantageous to the government was not
proven.
Section 3(g) of R.A. No. 3019 provides:
Section 3. Corrupt practices of public officersIn addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
xxxx
(g) Entering on behalf of the Government, into any contract or transaction, manifestly
and grossly disadvantageous to the same, whether or not the public officer profited or
will profit thereby.
For a charge under Section 3(g) to prosper, the following elements must be present:
(1) that the accused is a public officer; (2) that he entered into a contract or
transaction on behalf of the government; and (3) that such contract or transaction is
grossly and manifestly disadvantageous to the government. [17]
The presence of the first two elements of the crime is not disputed. Hence, the
threshold question we should resolve is whether the walis tingting purchase contracts
were grossly and manifestly injurious or disadvantageous to the government.
We agree with petitioners that the fact of overpricing is embedded in the third criminal
element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the
subject contracts would be grossly and manifestly disadvantageous to the
government if characterized by an overpriced procurement. However, the gross and
manifest disadvantage to the government was not sufficiently shown because the
conclusion of overpricing was erroneous since it was not also adequately proven.
Thus, we grant the petitions.
In criminal cases, to justify a conviction, the culpability of an accused must be
established by proof beyond a reasonable doubt.[18] The burden of proof is on the
prosecution, as the accused enjoys a constitutionally enshrined disputable
presumption of innocence.[19] The court, in ascertaining the guilt of an accused, must,
after having marshaled the facts and circumstances, reach a moral certainty as to the
accuseds guilt. Moral certainty is that degree of proof which produces conviction in an
unprejudiced mind.[20] Otherwise, where there is reasonable doubt, the accused must
be acquitted.
In finding that the walis tingting purchase contracts were grossly and manifestly
disadvantageous to the government, the Sandiganbayan relied on the COAs finding
of overpricing which was, in turn, based on the special audit teams report. The audit
teams conclusion on the standard price of a walis tingting was pegged on the basis of
the following documentary and object evidence: (1) samples of walis tingting without
handle actually used by the street sweepers; (2) survey forms on the walis
tingtingaccomplished by the street sweepers; (3) invoices from six merchandising
stores where the audit team purchased walis tingting; (4) price listing of the DBM
Procurement Service; and (5) documents relative to the walis tingting purchases of
Las Pias City. These documents were then compared with the documents furnished
by petitioners and the other accused relative to Paraaque Citys walis
tingting transactions.
Notably, however, and this the petitioners have consistently pointed out, the evidence
of the prosecution did not include a signed price quotation from the walis
tingting suppliers of Paraaque City. In fact, even the walis tingting furnished the audit
team by petitioners and the other accused was different from the walis
tingting actually utilized by the Paraaque City street sweepers at the time of ocular
inspection by the audit team. At the barest minimum, the evidence presented by the
prosecution, in order to substantiate the allegation of overpricing, should have been
identical to the walis tingting purchased in 1996-1998. Only then could it be
concluded that the walis tingting purchases were disadvantageous to the government
because only then could a determination have been made to show that the
disadvantage was so manifest and gross as to make a public official liable under
Section 3(g) of R.A. No. 3019.
On the issue of hearsay, the Sandiganbayan hastily shot down petitioners arguments
thereon, in this wise:
61
We find no application of the hearsay rule here. In fact, all the witnesses in this case
testified on matters within their personal knowledge. The prosecutions principal
witness, Ms. Bermudez, was a State Auditor and the Assistant Division Chief of the
Local Government Audit Office who was tasked to head a special audit team to audit
selected transactions of Paraaque City. The report which she identified and testified
on [was] made by [the] Special Audit Team she herself headed. The disbursement
vouchers, purchase orders, purchase requests and other documents constituting the
supporting papers of the teams report were public documents requested from the City
Auditor of Paraaque and from the accused Mayor Marquez. Such documents were
submitted to the Special Audit Team for the specific purpose of reviewing them. The
documents were not executed by Ms. Bermudez or by any member of the Special
Audit Team for the obvious reason that, as auditors, they are only reviewing acts of
others. The Special Audit Teams official task was to review the documents of
the walis tingting transactions. In the process of [the] review, they found many
irregularities in the documentations violations of the Local Government Code and
pertinent COA rules and regulations. They found that the transactions were grossly
overpriced. The findings of the team were consolidated in a report. The same report
was the basis of Ms. Bermudezs testimony. x x x.[21]
The reasoning of the Sandiganbayan is specious and off tangent. The audit team
reached a conclusion of gross overpricing based on documents which, at best, would
merely indicate the present market price of walis tingting of a different
specification, purchased from a non-supplier of Paraaque City, and the price
of walis tingting purchases in Las Pias City. Effectively, the prosecution was unable
to demonstrate the requisite burden of proof, i.e., proof beyond reasonable doubt, in
order to overcome the presumption of innocence in favor of petitioners.
As pointed out by petitioner Caunan, not all of the contents of the audit teams report
constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez could
very well testify thereon since the conclusions reached therein were made by her and
her team. However, these conclusions were based on incompetent evidence. Most
obvious would be the market price of walis tingting in Las Pias City which was used
as proof of overpricing in Paraaque City. The prosecution should have presented
evidence of the actual price of the particular walis tingting purchased by petitioners
and the other accused at the time of the audited transaction or, at the least, an
approximation thereof. Failing in these, there is no basis to declare that there was a
glaring overprice resulting in gross and manifest disadvantage to the government.
We are not unmindful of the fact that petitioners failed to conduct the requisite public
bidding for the questioned procurements. However, the lack of public bidding alone
does not automatically equate to a manifest and gross disadvantage to the
government. As we had occasion to declare in Nava v. Sandiganbayan,[22] the
absence of a public bidding may mean that the government was not able to secure
the lowest bargain in its favor and may open the door to graft and corruption.
However, this does not satisfy the third element of the offense charged, because the
law requires that the disadvantage must be manifest and gross. After all, penal laws
are strictly construed against the government.
With the foregoing disquisition, we find no necessity to rule on the applicability of our
rulings in Arias and Magsuci to petitioner Marquez. Nonetheless, we wish to reiterate
herein the doctrines laid down in those cases. We call specific attention to the sweeping
conclusion made by the Sandiganbayan that a conspiracy existed among petitioners
and the other accused, most of whom were acquitted, particularly private individual
Razo, the proprietor of Zaro Trading.
Our ruling in Magsuci, citing our holding in Arias, should be instructive, viz.:
The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy
among Magsuci, Ancla and now deceased Enriquez.
There is conspiracy when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Conspiracy is not presumed. Like the
physical acts constituting the crime itself, the elements of conspiracy must be proven
beyond reasonable doubt. While conspiracy need not be established by direct
evidence, for it may be inferred from the conduct of the accused before, during and
after the commission of the crime, all taken together, however, the evidence therefore
must reasonably be strong enough to show a community of criminal design.
xxxx
Fairly evident, however, is the fact that the actions taken by Magsuci involved the very
functions he had to discharge in the performance of his official duties. There has been
no intimation at all that he had foreknowledge of any irregularity committed by either or
both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and
administratively remiss in placing too much reliance on the official reports submitted by
his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there
must be a conscious design to commit an offense. Conspiracy is not the product of
negligence but of intentionality on the part of cohorts.
In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different
rule could bring, has aptly concluded:
We would be setting a bad precedent if a head of office plagued by all too common
problemsdishonest or negligent subordinates, overwork, multiple assignments or
positions, or plain incompetenceis suddenly swept into a conspiracy conviction simply
because he did not personally examine every single detail, painstakingly trace every
step from inception, and investigate the motives of every person involved in a
transaction before affixing his signature as the final approving authority.
x x x. All heads of offices have to rely to a reasonable extent on their subordinates and
on the good faith of those who prepare bids, purchase supplies, or enter into
negotiations. x x x. There has to be some added reason why he should examine each
voucher in such detail. Any executive head of even small government agencies or
commissions can attest to the volume of papers that must be signed. There are
hundreds of documents, letters, memoranda, vouchers, and supporting papers that
routinely pass through his hands. The number in bigger offices or department is even
more appalling.[23]
62
WHEREFORE, premises considered, the Decision dated August 30, 2007 and
Resolution dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944,
27946, 27952, 27953, & 27954 are REVERSED and SET ASIDE. Petitioners Joey P.
Marquez in G.R. Nos. 182020-24 and Ofelia C. Caunan in G.R. Nos. 181999 and
182001-04 are ACQUITTED of the charges against them. Costs de oficio.
SO ORDERED.
[G.R. No. 133535. September 9, 1999]
LILIA B. ORGANO, petitioner, vs. THE SANDIGANBAYAN and THE
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
PARDO, J.:
The case before the Court is a special civil action for certiorari with
preliminary injunction or temporary restraining order assailing the
resolutions of the Sandiganbayan, Fourth Division,[1] that denied
petitioner's motion to quash the information in the case below, for lack
of merit.
We grant the petition.
The facts are as follows:
On August 15, 1997, Special Prosecution Officer Jose T. de Jesus, Jr.,
filed with the Sandiganbayan an Information against petitioner, together
with others, for the crime of "plunder" or violation of R. A. No. 7080, as
amended by R. A. No. 7659.[2]
The Information reads as follows:
That on or about 05 November 1996, or sometime prior or subsequent
thereto, in Quezon City, Philippines and within the jurisdiction of this
Honorable Court, accused Dominga S. Manalili, Teopisto A. Sapitula,
Jose dP. Marcelo, Lilia B. Organo, being then public officers and taking
advantage of their official positions as employees of the Bureau of
Internal Revenue, Region 7, Quezon City, and Gil R. Erencio, Reynaldo
S. Enriquez and Luis S. Se, Jr., conspiring, confabulating and
confederating with one another, did then and there wilfully, unlawfully
and criminally amass and acquire funds belonging to the National
Government by opening an unauthorized bank account with the
Landbank of the Philippines, West Triangle Branch, Diliman, Quezon
City, for and in behalf of the Bureau of Internal Revenue and deposit
therein money belonging to the government of the Philippines,
consisting of revenue tax payments, then withdraw therefrom the total
sum of Pesos: One Hundred Ninety Three Million Five Hundred Sixty
Five Thousand Seventy Nine & 64/100 (P193,565,079.64) Philippine
Currency, between November, 1996 to February, 1997, without proper
authority, through checks made payable to themselves and/or the sole
proprietorship firms of the above named private persons, thereby
succeeding in misappropriating, converting, misusing and/or
malversing said public funds tantamount to a raid on the public treasury,
to their own personal gains, advantages and benefits, to the damage
and prejudice of the government in the aforestated amount[3]
On August 20, 1997, petitioner filed with the Sandiganbayan a motion
to quash information for lack of jurisdiction, contending that the
Sandiganbayan no longer had jurisdiction over the case under R. A.
8249, approved on February 5, 1997.
On September 29, 1997, without first resolving petitioner's motion to
quash information, the Sandiganbayan issued a warrant of arrest
against all the accused in the case.
On November 28, 1997, the Sandiganbayan issued a resolution
denying petitioner's motion to quash the information for lack of merit.
On December 9, 1997, petitioner filed with the Sandiganbayan a motion
for reconsideration, reiterating the ground of lack of jurisdiction over the
case pursuant to Republic Act No. 8249, approved on February 5,
1997.
On April 28, 1998, after one hundred forty (140) days from its filing, the
Sandiganbayan issued a resolution denying petitioner's motion for
reconsideration ruling that she should first surrender to the court before
she may file any further pleading with the court.
Hence, this petition.
On June 23, 1998, the Court resolved to require the respondents to
comment on the petition, not to file a motion to dismiss, within ten (10)
days from notice.[4]
On September 14, 1998, the Office of the Special Prosecutor,
representing the People of the Philippines, filed its comment.[5]
On January 4, 1999, the Solicitor General filed his comment.[6]
We give due course to the petition.
At issue is whether the Sandiganbayan at the time of the filing of the
information on August 15, 1997 had jurisdiction over the case, in view
of the enactment on February 5, 1997 of Republic Act No. 8249, vesting
in the Sandiganbayan jurisdiction over offenses and felonies whether
simple or complexed with other crimes committed by public officers and
employees mentioned in subsection (a) of Section 4 in relation to their
office where the accused holds a position with salary grade "27" and
higher under the Compensation and Position Classification Act of 1989.
63
Petitioner contends that since none of the accused holds a position with law."[10] Republic Act No. 8429, enacted on February 5, 1997 is the
Salary Grade "27" and higher, jurisdiction over the case falls with the special law that provided for the jurisdiction of the Sandiganbayan
Regional Trial Court.[7] On the other hand, respondent "otherwise" than that prescribed in Republic Act No. 7080.
Sandiganbayan's position is that Republic Act No. 7080 which defines Consequently, we rule that the Sandiganbayan has no jurisdiction over
and penalizes the crime of "plunder" vests in the Sandiganbayan the crime of plunder unless committed by public officials and
jurisdiction thereof, and since it is a special law, it constitutes an employees occupying the positions with Salary Grade "27" or higher,
exception to the general law, Republic Act No. 8249.[8] under the Compensation and Position Classification Act of 1989
Republic Act No. 7080, Section 3 provides: (Republic Act No. 6758) in relation to their office.
"Until otherwise provided by law, all pro-sections under this Act shall In ruling in favor of its jurisdiction, even though none of the accused
be within the original jurisdiction of the Sandiganbayan." occupied positions with Salary Grade 27 or higher under the
This law was enacted on September 23, 1991, and was effective on Compensation and Position Classification Act of 1989 (Republic Act
October 7, 1991. No. 6758), the Sandiganbayan incurred in serious error of jurisdiction,
On February 5, 1997, Republic Act No. 8249 was approved, further entitling petitioner to the relief prayed for.
defining the jurisdiction of the Sandiganbayan. WHEREFORE, the Court hereby GRANTS the petition
Section 4 of the law provides: for certiorari and ANNULS the resolutions of the Sandiganbayan, dated
Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive November 20, 1997, and April 28, 1998, in Criminal Case No. 24100.
original jurisdiction in all cases involving: The Court orders the Sandiganbayan to forthwith refer the case to the
xxx court of proper jurisdiction.
b. Other offenses or felonies whether simple or complexed with other No costs.
crimes committed by the public officials and employees mentioned in SO ORDERED.
sub-section a of this section in relation to their office.
xxx
In cases where none of the accused are occupying positions
corresponding to Salary Grade 27 or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129, as
amended.[9]
This latest enactment collated the provisions on the exclusive
jurisdiction of the Sandiganbayan. It is a special law enacted to declog
the Sandiganbayan of "small fry" cases. In an unusual manner, the
original jurisdiction of the Sandiganbayan as a trial court was made to
depend not on the penalty imposed by law on the crimes and offenses
within its jurisdiction but on the rank and salary grade of accused
government officials and employees.
However, the crime of "plunder" defined in Republic Act No. 7080, as
amended by Republic Act No. 7659, was provisionally placed within the
jurisdiction of the Sandiganbayan "until otherwise provided by
64

[G.R. No. 148560. November 19, 2001]
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third
Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his
pen in defense of the rights of the individual from the vast powers of the State
and the inroads of societal pressure. But even as he draws a sacrosanct line
demarcating the limits on individuality beyond which the State cannot tread -
asserting that "individual spontaneity" must be allowed to flourish with very
little regard to social interference - he veritably acknowledges that the exercise
of rights and liberties is imbued with a civic obligation, which society is justified
in enforcing at all cost, against those who would endeavor to withhold
fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-protection.
The only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to
self-preservation. With the end of maintaining the integrity and cohesiveness
of the body politic, it behooves the State to formulate a system of laws that
would compel obeisance to its collective wisdom and inflict punishment for
non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism
wrought changes in the social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the imperatives of
contemporary socio-political ideologies. In the process, the web of rights and
State impositions became tangled and obscured, enmeshed in threads of
multiple shades and colors, the skein irregular and broken. Antagonism, often
outright collision, between the law as the expression of the will of the State,
and the zealous attempts by its members to preserve their individuality and
dignity, inevitably followed. It is when individual rights are pitted against State
authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but distinct line
which divides the valid from the constitutionally infirm. He therefore makes a
stringent call for this Court to subject the Plunder Law to the crucible of
constitutionality mainly because, according to him, (a) it suffers from the vice
of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal
prosecutions; and, (c) it abolishes the element of mens rea in crimes already
punishable under The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due process and to be
informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have
transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,
enterprise or material possession of any person within the purview of Section
Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity
in connection with any government contract or project or by reason of the office
or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging
to the National Government or any of its subdivisions, agencies or
instrumentalities, or government owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the promise
of future employment in any business enterprise or undertaking;
65
(5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection
or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer
who, by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said public officer in
the commission of an offense contributing to the crime of plunder shall likewise
be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances
as provided by the Revised Penal Code shall be considered by the court. The
court shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived from
the deposit or investment thereof forfeited in favor of the State (underscoring
supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan
eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for
violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to
26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3,
par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c)
Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code
of Conduct and Ethical Standards for Public Officials and Employees); (d)
Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and,
(e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended
by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case
to the Ombudsman for preliminary investigation with respect to specification
"d" of the charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications "a," "b,"
and "c" to give the accused an opportunity to file counter-affidavits and other
documents necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness
of the law under which they are charged were never raised in that Omnibus
Motion thus indicating the explicitness and comprehensibility of the Plunder
Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in
Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was denied
by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No.
26558 on the ground that the facts alleged therein did not constitute an
indictable offense since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder charged more than
one (1) offense. On 21 June 2001 the Government filed its Opposition to the
Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for certiorari
are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder
Law requires less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process; and, (c) Whether
Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is
within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is
presumed to be in harmony with the Constitution.[3] Courts invariably train
their sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication. This
strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and
66
powers of another. Thus it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the
courts must assume that the legislature is ever conscious of the borders and
edges of its plenary powers, and has passed the law with full knowledge of the
facts and for the purpose of promoting what is right and advancing the welfare
of the majority. Hence in determining whether the acts of the legislature are in
tune with the fundamental law, courts should proceed with judicial restraint and
act with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a
measure of last resort. In construing therefore the provisions of a statute,
courts must first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as
there is some basis for the decision of the court, the constitutionality of the
challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to catapult
a fundamentally deficient law into the safe environs of constitutionality. Of
course, where the law clearly and palpably transgresses the hallowed domain
of the organic law, it must be struck down on sight lest the positive commands
of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond any
tinge of doubt that there is indeed an infringement of the constitution, for
absent such a showing, there can be no finding of unconstitutionality. A doubt,
even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To
doubt is to sustain."[5] And petitioner has miserably failed in the instant case
to discharge his burden and overcome the presumption of constitutionality of
the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-
defined parameters which would enable the accused to determine the nature
of his violation. Section 2 is sufficiently explicit in its description of the acts,
conduct and conditions required or forbidden, and prescribes the elements of
the crime with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a
combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or raids
on the public treasury; (b) by receiving, directly or indirectly, any commission,
gift, share, percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government contract or project
or by reason of the office or position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of
Government owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of
future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or (f) by taking advantage of official
position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable to its
penalties, its validity will be sustained. It must sufficiently guide the judge in its
application; the counsel, in defending one charged with its violation; and more
importantly, the accused, in identifying the realm of the proscribed conduct.
Indeed, it can be understood with little difficulty that what the assailed statute
punishes is the act of a public officer in amassing or accumulating ill-gotten
wealth of at least P50,000,000.00 through a series or combination of acts
enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which
petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of
the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA'
and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie
'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and
67
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,
WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF
THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES,
through ANY OR A combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES
AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and
benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION
PESOS (P130,000,000.00), more or less, representing a portion of the TWO
HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or
in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social
Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS,
OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY
FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES
OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00)
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME
PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS,
IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of
MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE'
AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is
obviously none - that will confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the elements of the crime are
easily understood and provide adequate contrast between the innocent and
the prohibited acts. Upon such unequivocal assertions, petitioner is completely
informed of the accusations against him as to enable him to prepare for an
intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms "combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found in Sec. 1, par. (d), and
Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to
petitioner, render the Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be informed of the nature and
68
cause of the accusation against him, hence, violative of his fundamental right
to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered
uncertain and void merely because general terms are used therein, or because
of the employment of terms without defining them;[6] much less do we have to
define every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and every word in
an enactment. Congress is not restricted in the form of expression of its will,
and its inability to so define the words employed in a statute will not necessarily
result in the vagueness or ambiguity of the law so long as the legislative will is
clear, or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a
statute will be interpreted in their natural, plain and ordinary acceptation and
signification,[7] unless it is evident that the legislature intended a technical or
special legal meaning to those words.[8] The intention of the lawmakers - who
are, ordinarily, untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted definition of
the words "combination" and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to obscure
individual characters.
Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the legislative
deliberations on the bill which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May
1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say
THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS
AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we
mean to say that number one and two or number one and something else are
included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated
means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say combination, we mean,
two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is
why, I said, that is a very good suggestion because if it is only one act, it may
fall under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
69

REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes one or
maybe even two acts may already result in such a big amount, on line 25,
would the Sponsor consider deleting the words a series of overt or, to read,
therefore: or conspiracy COMMITTED by criminal acts such as. Remove the
idea of necessitating a series. Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the
acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or many; two or
more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the
particular crime. But when we say acts of plunder there should be, at least,
two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws,
Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least
two (2) acts falling under different categories of enumeration provided in Sec.
1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and
fraudulent conveyance of assets belonging to the National Government under
Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt
or criminal acts falling under the same category of enumeration found in Sec.
1, par. (d), say, misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the
legislature intended a technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in specifically providing for it in the
law.
As for "pattern," we agree with the observations of the Sandiganbayan[9] that
this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec.
2-
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination
or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec.
1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal
acts is directed towards a common purpose or goal which is to enable the
public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly,
there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve
said common goal. As commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method' which the principal
accused and public officer and others conniving with him follow to achieve the
aforesaid common goal. In the alternative, if there is no such overall scheme
or where the schemes or methods used by multiple accused vary, the overt or
criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is
manifestly misplaced. The doctrine has been formulated in various ways, but
is most commonly stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient definiteness that persons of
70
ordinary intelligence can understand what conduct is prohibited by the statute.
It can only be invoked against that specie of legislation that is utterly vague on
its face, i.e., that which cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is repugnant
to the Constitution in two (2) respects - it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of what conduct
to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.[10]
But the doctrine does not apply as against legislations that are merely couched
in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be "saved" by proper
construction, while no challenge may be mounted as against the second
whenever directed against such activities.[11] With more reason, the doctrine
cannot be invoked where the assailed statute is clear and free from ambiguity,
as in this case.
The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.[12] It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld -
not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An act will not
be held invalid merely because it might have been more explicit in its wordings
or detailed in its provisions, especially where, because of the nature of the act,
it would be impossible to provide all the details in advance as in all other
statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice
Vicente V. Mendoza during the deliberations of the Court that the allegations
that the Plunder Law is vague and overbroad do not justify a facial review of
its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates
the first essential of due process of law."[13] The overbreadth doctrine, on the
other hand, decrees that "a governmental purpose may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."[14]
A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes
in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with narrow
specificity."[15] The possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general
in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only
to free speech cases. They are inapt for testing the validity of penal statutes.
As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist,
"we have not recognized an 'overbreadth' doctrine outside the limited context
of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled
that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and, again,
that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to
protected conduct." For this reason, it has been held that "a facial challenge to
a legislative act is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the
Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
71
respect to such statute, the established rule is that "one to whom application
of a statute is constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional."[20] As has been
pointed out, "vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant."[21] Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and in
its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected.[22] It constitutes a departure
from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract
contexts.[23] But, as the U.S. Supreme Court pointed out in Younger v.
Harris[24]
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process
of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort,"[25] and is generally disfavored.[26] In determining the constitutionality
of a statute, therefore, its provisions which are alleged to have been violated
in a case must be examined in the light of the conduct with which the defendant
is charged.[27]
In light of the foregoing disquisition, it is evident that the purported ambiguity
of the Plunder Law, so tenaciously claimed and argued at length by petitioner,
is more imagined than real. Ambiguity, where none exists, cannot be created
by dissecting parts and words in the statute to furnish support to critics who
cavil at the want of scientific precision in the law. Every provision of the law
should be construed in relation and with reference to every other part. To be
sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori,
petitioner cannot feign ignorance of what the Plunder Law is all about. Being
one of the Senators who voted for its passage, petitioner must be aware that
the law was extensively deliberated upon by the Senate and its appropriate
committees by reason of which he even registered his affirmative vote with full
knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only
to illustrate and emphasize the point that courts are loathed to declare a statute
void for uncertainty unless the law itself is so imperfect and deficient in its
details, and is susceptible of no reasonable construction that will support and
give it effect. In that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act
for being vague. Petitioners posited, among others, that the term
"unwarranted" is highly imprecise and elastic with no common law meaning or
settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair
warning or sufficient notice of what it seeks to penalize. Petitioners further
argued that the Information charged them with three (3) distinct offenses, to
wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving
of "unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the
nature and cause of the accusation against them was violated because they
were left to guess which of the three (3) offenses, if not all, they were being
charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act does not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident bad faith," and "gross
and inexcusable negligence" merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may be committed, and the
use of all these phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official
support; unjustified; unauthorized (Webster, Third International Dictionary, p.
2514); or without justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part,
p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a
corrupt practice and make unlawful the act of the public officer in:
72
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable negligence,
x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official,
administrative or judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or without
justification or adequate reason, through manifest partiality, evident bad faith
or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in
the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec.
4 of the Plunder Law circumvents the immutable obligation of the prosecution
to prove beyond reasonable doubt the predicate acts constituting the crime of
plunder when it requires only proof of a pattern of overt or criminal acts
showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder,
it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused always has
in his favor the presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is entitled to an
acquittal.[29] The use of the "reasonable doubt" standard is indispensable to
command the respect and confidence of the community in the application of
criminal law. It is critical that the moral force of criminal law be not diluted by a
standard of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every individual going
about his ordinary affairs has confidence that his government cannot adjudge
him guilty of a criminal offense without convincing a proper factfinder of his
guilt with utmost certainty. This "reasonable doubt" standard has acquired
such exalted stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except upon
proof beyond reasonable doubt of every fact necessary to constitute the crime
with which he is charged.[30] The following exchanges between Rep. Rodolfo
Albano and Rep. Pablo Garcia on this score during the deliberations in the
floor of the House of Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9
October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that
what is alleged in the information must be proven beyond reasonable doubt. If
we will prove only one act and find him guilty of the other acts enumerated in
the information, does that not work against the right of the accused especially
so if the amount committed, say, by falsification is less than P100 million, but
the totality of the crime committed is P100 million since there is malversation,
bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to
be proved beyond reasonable doubt. What is required to be proved beyond
reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the
information three pairs of pants, pieces of jewelry. These need not be proved
beyond reasonable doubt, but these will not prevent the conviction of a crime
for which he was charged just because, say, instead of 3 pairs of diamond
earrings the prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the
crime of plunder the totality of the amount is very important, I feel that such a
series of overt criminal acts has to be taken singly. For instance, in the act of
bribery, he was able to accumulate only P50,000 and in the crime of extortion,
he was only able to accumulate P1 million. Now, when we add the totality of
the other acts as required under this bill through the interpretation on the rule
of evidence, it is just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element beyond
reasonable doubt. For example, one essential element of the crime is that the
amount involved is P100 million. Now, in a series of defalcations and other
acts of corruption in the enumeration the total amount would be P110 or P120
million, but there are certain acts that could not be proved, so, we will sum up
the amounts involved in those transactions which were proved. Now, if the
73
amount involved in these transactions, proved beyond reasonable doubt, is
P100 million, then there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden
still remains with the prosecution to prove beyond any iota of doubt every fact
or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of
the crime suffers from a dismal misconception of the import of that provision.
What the prosecution needs to prove beyond reasonable doubt is only a
number of acts sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least P50,000,000.00. There
is no need to prove each and every other act alleged in the Information to have
been committed by the accused in furtherance of the overall unlawful scheme
or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with
having committed fifty (50) raids on the public treasury. The prosecution need
not prove all these fifty (50) raids, it being sufficient to prove by pattern at least
two (2) of the raids beyond reasonable doubt provided only that they amounted
to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern arises
where the prosecution is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof
of the predicate acts. This conclusion is consistent with reason and common
sense. There would be no other explanation for a combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or
conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution
is therefore not required to make a deliberate and conscious effort to prove
pattern as it necessarily follows with the establishment of a series or
combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of plunder;"
and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a
substantive element of the crime," such that without it the accused cannot be
convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of Evidence if
there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are
proved beyond reasonable doubt without applying Section 4, can you not have
a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in
convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when
there is proof beyond reasonable doubt on the acts charged constituting
plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the crime
of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar
as the predicate crimes charged are concerned that you do not have to go that
far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by the
prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements
of plunder can be culled and understood from its definition in Sec. 2, in relation
to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph
and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder
xxxx
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It purports to do no more than prescribe a rule of procedure for the prosecution
of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does
not define or establish any substantive right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a conviction for
plunder may be had, for what is crucial for the prosecution is to present
sufficient evidence to engender that moral certitude exacted by the
fundamental law to prove the guilt of the accused beyond reasonable doubt.
Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated
for the reasons advanced by petitioner, it may simply be severed from the rest
of the provisions without necessarily resulting in the demise of the law; after
all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the remaining
provisions of this Act and the application of such provisions to other persons
or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions, assuming
that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder
is a malum in se which requires proof of criminal intent. Thus, he says, in his
Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of
mens rea must be proven in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder was committed
"willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part
of petitioner.
In support of his contention that the statute eliminates the requirement of mens
rea and that is the reason he claims the statute is void, petitioner cites the
following remarks of Senator Taada made during the deliberation on S.B. No.
733:
SENATOR TAADA . . . And the evidence that will be required to convict him
would not be evidence for each and every individual criminal act but only
evidence sufficient to establish the conspiracy or scheme to commit this crime
of plunder.[33]
However, Senator Taada was discussing 4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind of
cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is conspiracy to commit
plunder, the prosecution need not prove each and every criminal act done to
further the scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or ciminal acts indicative of the overall
unlawful scheme or conspiracy. As far as the acts constituting the pattern are
concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, 2 provides that -
Any person who participated with the said public officer in the commission of
an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised
Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly
that mens rea is an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that 2 refers to "any
person who participates with the said public officer in the commission of an
offense contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public officer as principal in the
crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean."[35]
Finally, any doubt as to whether the crime of plunder is a malum in se must be
deemed to have been resolved in the affirmative by the decision of Congress
in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this
Court held in People v. Echegaray:[36]
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The evil of a crime may take various forms. There are crimes that are, by their
very nature, despicable, either because life was callously taken or the victim
is treated like an animal and utterly dehumanized as to completely disrupt the
normal course of his or her growth as a human being . . . . Seen in this light,
the capital crimes of kidnapping and serious illegal detention for ransom
resulting in the death of the victim or the victim is raped, tortured, or subjected
to dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious
illegal detention, where the victim is detained for more than three days or
serious physical injuries were inflicted on the victim or threats to kill him were
made or the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger socio-
political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and
impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the structures of
society and the psyche of the populace. [With the government] terribly lacking
the money to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an actual
threat to the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson resulting
in death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further destruction
and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense
implies that it is a malum in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se[37] and it does not matter
that such acts are punished in a special law, especially since in the case of
plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd
to treat prosecutions for plunder as though they are mere prosecutions for
violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory
law of RA 7080, on constitutional grounds. Suffice it to say however that it is
now too late in the day for him to resurrect this long dead issue, the same
having been eternally consigned by People v. Echegaray[38] to the archives
of jurisprudential history. The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the State, and becomes, by
necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy
of officials in high places which have shaken its very foundation. The anatomy
of graft and corruption has become more elaborate in the corridors of time as
unscrupulous people relentlessly contrive more and more ingenious ways to
bilk the coffers of the government. Drastic and radical measures are imperative
to fight the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder
Law, especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The Plunder
Law, indeed, is a living testament to the will of the legislature to ultimately
eradicate this scourge and thus secure society against the avarice and other
venalities in public office.
These are times that try men's souls. In the checkered history of this nation,
few issues of national importance can equal the amount of interest and passion
generated by petitioner's ignominious fall from the highest office, and his
eventual prosecution and trial under a virginal statute. This continuing saga
has driven a wedge of dissension among our people that may linger for a long
time. Only by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the midst of
ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known
as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law unconstitutional is DISMISSED
for lack of merit.
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